CourPénale |Internationale
InternationalCriminalCourt
Original: English No.: ICC-02/05-01/07Date: 27 April 2007
PRE-TRIAL CHAMBER I
Before: Judge Akua Kuenyehia, Presiding JudgeJudge Claude JordaJudge Sylvia Steiner
Registrar: Mr Bruno Cathala
SITUATION IN DARFUR, SUDAN
IN THE CASE OFTHE PROSECUTOR v.
AHMAD MUHAMMAD HARUN ("AHMAD HARUN") andALI MUHAMMAD AL ABD-AL-RAHMAN ("AU KUSHAYB")
Public
Decision on the Prosecution Application under Article 58(7) of the Statute
The Office of the ProsecutorMr Luis Moreno Ocampo, ProsecutorMrs Fatou Bensouda, Deputy ProsecutorMr Andrew Cayley, Senior Trial LawyerMr Ade Omofade, Trial Lawyer
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Table of contents
I. Background 4II. Whether the case against Ahmad Harun and Ali Kushayb falls within the jurisdiction ofthe Court and is admissible 5III. Whether the common requirements under article 58(7) of the Statute for the issuance ofsummonses to appear or, in the alternative, under article 58(1) of the Statute for the issuance ofwarrants of arrest, have been met 9
A. Whether there are reasonable grounds to believe that the crimes described in theProsecution Application have been committed 10
2. War crimes 20(a) Whether there are reasonable grounds to believe that the contextual element of at least one warcrime within the jurisdiction of the Court is present 20(b) Whether there are reasonable grounds to believe that the criminal acts referred to in theProsecution Application of at least one war crime within the jurisdiction of the Court are present 25
2. Crimes against humanity 20(a) Whether there are reasonable grounds to believe that the contextual elements of at least onecrime against humanity within the jurisdiction of the Court have been met 20(b) Whether there are reasonable grounds to believe that the criminal acts referred to in the ProsecutionApplication of at least one crime against humanity within the jurisdiction of the Court arepresent 24
B. Whether there are reasonable grounds to believe that Ahmad Harun and Ali Kushayb arecriminally responsible for the crimes mentioned above 27
2. Criminal Responsibility of Ahmad Harun 282 Criminal responsibility of Ali Kushayb 32
IV. Whether the specific requirements under article 58 of the Statute for the issuance of asummons to appear or, in the alternative, for the issuance of a warrant of arrest, have been met 36
A. The requirements under article 58(7) of the Statute 36B. The requirements under article 58(l)(b) of the Statute 40
V. Transmission of the Warrants of Arrest 42
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PRE-TRIAL CHAMBER I of the International Criminal Court ("the Chamber" and"the Court" respectively) has been seized of the Prosecution's Application forsummonses to appear filed on 27 February 2007 pursuant to article 58(7) of theStatute of the Court ("the Statute") in the investigation of the Situation in Darfur,Sudan. Having examined the written and oral submissions of the Prosecution, theChamber
RENDERS THIS DECISION:
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I. Background
1. On 31 March 2005, the United Nations Security Council, acting under Chapter
VII of the Charter of the United Nations, adopted resolution 15931 referring the
Situation in Darfur, Sudan since 1 July 2002 to the Prosecutor of the International
Criminal Court, in accordance with article 13(b) of the Statute.
2. On 21 April 2005, the Presidency issued a decision assigning the situation in
Darfur, Sudan to the Chamber, pursuant to regulation 46 of the Regulations of the
Court ("the Regulations").2
3. On 1 June 2005, the Prosecution informed the Chamber of its decision to
initiate an investigation into the Situation in Darfur, Sudan, pursuant to article 53 of
the Statute and rule 104 of the Rules of Procedure and Evidence ("the Rules").3
4. On 27 February 2007, the Prosecution filed an application under article 58(7)
("the Prosecution Application")4 requesting that summonses to appear or, in the
alternative, warrants of arrest be issued for Ahmad Muhammad HARUN ("Ahmad
Harun")5 and Ali Muhammad Ali ABD-AL-RAHMAN ("AH Kushayb") be issued by
the Chamber.6
5. On 8 March 2007, an ex parte hearing was held with the Prosecution and the
Victims and Witnesses Unit in order to address issues pertaining to the Prosecution
Application. At the hearing, the Chamber invited the Prosecution to submit evidence
in support of the Prosecution Application.
1 S/RES/1593(2005).2 ICC-02/05-l-Corr.3ICC-02/05-2.
5 Whose names are also spelled as Ahmed Haroun, Ahmed Haroon and Mohamed Ahmed Haroun.6 Whose names are also spelled as Ah Kosheib, Ali Kouchib, Ali Mohamed, Ah Kosheb, Koshib and Ah
4 ICC-02/05-55-US-Exp; ICC-02/05-56.5 Whose6 WhoseKoship.
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6. On 9 March 2007, the Prosecution filed its "Provision of Information Pursuant
to Undertakings Made During Hearing on March 8 2007"7 providing the Chamber
with information about Sudanese law relating to summonses to appear.
7. On 13 March 2007, the Prosecution filed its "Prosecution's Submission of
Further Information and Materials Pursuant to the Invitation of Pre-Trial Chamber I
on 8 March 2007"8 ("the Prosecution Submission"), in which the Prosecution submits
additional material and evidence in support of the Prosecution Application.
8. On 15 March 2007, the Chamber ordered the Prosecution to provide the
Chamber with a copy of the warrant of arrest issued by the Sudanese authorities
against Ali Kushayb or any other document relating to the national investigation
concerning him or any other document specifying the reasons for his arrest by the
Sudanese authorities.9
9. On 26 March 2007, the Prosecution filed its response to the Order of Pre-Trial
Chamber ("the Prosecution Response") specifying the information it had in its
possession.10
10. On 13 April 2007, the Prosecution filed an "Update to Pre-Trial Chamber I
under article 58 on the Prosecutor's Contact with the Government of the Sudan and
Other International Actors,"11 informing the Chamber that it had requested some
information from the Government of the Sudan.
11. Whether the case against Ahmad Harun and Ali Kushayb falls within thejurisdiction of the Court and is admissible
11. Article 58 of the Statute contains two substantive prerequisites for the issuance
of a summons to appear or an arrest warrant. Firstly, the Chamber must be satisfied
7 ICC-02/05-62-US-Exp." ICC-02/05-64-US-Exp.9ICC-02/05-67-US.10 ICC-02/05-69-US-Exp.11 ICC-02/05-72-US-Exp.
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that "there are reasonable grounds to believe that the person has committed a crime
within the jurisdiction of the Court." Secondly, in the case of an arrest warrant, the
arrest of the person must appear necessary for at least one of the three reasons
enumerated in article 58(l)(b) of the Statute or, in the case of a summons, the
Chamber must be satisfied that a summons to appear is sufficient to ensure the
person's appearance.
12. Article 19(1) of the Statute provides that "[t]he Court shall satisfy itself that it
has jurisdiction in any case brought before it".
13. Consequently, an initial determination as to whether the case against Ahmad
Harun and Ali Kushayb falls within the jurisdiction of the Court is a prerequisite for
the issuance of summonses to appear or warrants of arrest.12
14. The Chamber recalls that a case includes "specific incidents during which one
or more crimes within the jurisdiction of the Court seem to have been committed by
one or more identified suspects". Therefore, a case arising from the investigation of a
situation falls within the jurisdiction of the Court only if the specific crimes of such a
case do not exceed the legal parameters envisaged by the Statute.13
15. The Chamber recalls that:
a) the Situation in Darfur, Sudan since 1 July 2002 was referred to the
Prosecutor of the International Criminal Court by the United Nations Security
Council on 31 March 2005, in accordance with article 13(b) of the Statute;
b) on 1 June 2005, the Prosecutor decided to initiate an investigation into the
situation in Darfur, Sudan.
12 ICC-01/04-01/06-8-Corr, para. 18, unsealed pursuant to Decision ICC-01/04-01/06-37. See also the practice ofPre-Trial Chamber II in its decisions on the Prosecution requests for warrants of arrest for Joseph Kony, VincentOtti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, unsealed pursuant to Decision ICC-02/04-01/05-52dated 13 October 2005.13 ICC-01/04-01/06-8-Corr, para. 21; see also articles 5,11 and 12 of the Statute.
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16. Regarding the territorial and personal parameters, the Chamber notes that
Sudan is not a State Party to the Statute. However, article 12 (2) does not apply where
a situation is referred to the Court by the Security Council acting under Chapter VII
of the Charter, pursuant to article 13(b) of the Statute. Thus, the Court may, where a
situation is referred to it by the Security Council, exercise jurisdiction over crimes
committed in the territory of States which are not Party to the Statute and by
nationals of States not Party to the Statute.
17. The Situation under investigation, from which the case against Ahmad Harun
and Ali Kushayb arises, has been defined as encompassing the Darfur, Sudan since 1
July 2002. Hence, as the Prosecution Application refers to conduct alleged to have
taken place in 2003 and 2004 in certain areas and villages of Darfur, Sudan, the
Chamber finds that the case against Ahmad Harun and Ali Kushayb falls within the
jurisdiction of the Court.
18. Besides, article 19(1) of the Statute gives the Chamber discretion to make an
initial determination of the admissibility of the case before the issuance of a warrant
of arrest or a summons to appear. Such discretion should be exercised only if
warranted by the circumstances of the case, bearing in mind the interest of the
person concerned.
19. In the present case, the Prosecution raised the issue of admissibility because
Ali Kushayb appeared to be under investigation for a number of incidents which
occurred in Darfur, Sudan. The Prosecution also mentioned that it had followed
extremely closely all of the judicial initiatives taken by the Sudanese authorities in
connection with the Situation in Darfur, Sudan.14 It stated that it had received written
information on a number of occasions explaining the nature of the Sudanese legal
system and that it had also received a large body of documentation on criminal
14 Prosecution Application, para. 254 and Anxl2.
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proceedings relating to the events in Darfur from a wide variety of public and
confidential sources.15
20. The Prosecution submitted detailed information regarding Ali Kushayb. The
Prosecution notes that, according to the Judicial Investigations Committee, Ali
Kushayb was arrested on 28 November 2006, on the basis of an arrest warrant issued
against him by the Sudanese authorities in April 2005. The Judicial Investigations
Committee indicated that Ali Kushayb was under investigation in relation to five
separate incidents which occurred in Shattaya in South Darfur and Nankuseh,
Tanako, Arawala and Deleig in West Darfur.16
21. The Prosecution further submits that while the investigation currently being
conducted against Ali Kushayb by the Sudanese authorities refers to the same person
as the one referred to in the Prosecution Application, the investigation undertaken by
the Sudanese authorities did not encompass the same conduct which is the subject of
the application before the Court.17
22. At the ex parte hearing of 8 March 2007, the Chamber sought additional
information in this regard and ordered the Prosecutor to provide it with more
information about the warrant of arrest issued against Ali Kushayb by the Sudanese
authorities or any other document or information relating to the national
investigation against him.18 The Prosecution was unable to provide the warrant of
arrest issued by the Sudanese authorities against Ali Kushayb to the Chamber.
23. According to the Prosecution, there was no indication that Ahmad Harun is
under investigation nor was there any indication that any prosecution had been
15 Prosecution Application, paras. 251-267.16 Prosecution Application, para. 256 and Anxl2, paras. 2-5.17 Prosecution Application, paras. 265-267.18ICC-02/05-67-US.
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initiated against him before national jurisdictions for any crime relating to the
Situation in Darfur, Sudan.19
24. The Chamber is of the view that for a case to be admissible, it is a condition
sine qua non that national proceedings do not encompass both the person and the
conduct which are the subject of the case before the Court.20
25. On the basis of the evidence and information provided to the Chamber in
relation to both Ahmad Harun and Ali Kushayb, without prejudice to any challenge
to the admissibility of the case under article 19(2) (a) and (b) of the Statute and
without prejudice to any subsequent determination, the Chamber finds that the case
against Ahmad Harun and Ali Kushayb falls within the jurisdiction of the Court and
appears to be admissible.
III. Whether the common requirements under article 58(7) of the Statute for theissuance of summonses to appear or, in the alternative, under article 58(1) ofthe Statute for the issuance of warrants of arrest, have been met
26. According to article 58(1) and (7) of the Statute, the Prosecution's request for
the issuance of summonses to appear or, in the alternative, for the issuance of
warrants of arrest may be granted if the Chamber is satisfied that there are
reasonable grounds to believe that at least one crime within the jurisdiction of the
Court has been committed and that there are reasonable grounds to believe that Ali
Kushayb and Ahmad Harun are criminally responsible for such crimes.
27. This analysis under article 58 of the Statute is without prejudice to the
Chamber's possible reconsideration of the legal characterisation of the facts or of the
modes of liability.21
28. The Chamber is of the view that, as required by article 21(3) of the Statute, the
expression "reasonable grounds to believe" must be interpreted and applied in
19 Prosecution Application, para. 264.20ICC-01/04-01/06-8-Corr, para. 31.21 ICC-01/04-01/06-8-Corr, para. 16.
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accordance with internationally recognized human rights. Thus, in interpreting and
applying the expression "reasonable grounds to believe", the Chamber will be
guided by the "reasonable suspicion" standard under article 5(l)(c) of the European
Convention on Human Rights and the jurisprudence of the Inter-American Court of
Human Rights on the fundamental right to personal liberty under article 7 of the
American Convention on Human Rights.*2
A. Whether there are reasonable grounds to believe that the crimes describedin the Prosecution Application have been committed
29. The Chamber notes that, according to the Statute and the Elements of Crimes,
the material element of every crime within the jurisdiction of the Court includes both
a contextual element and individual (or specific) criminal acts. Accordingly, the
Chamber will first determine whether there are reasonable grounds to believe that
the contextual element is present, before considering whether the relevant criminal
acts referred to in the Prosecution Application are also present.
30. The Prosecution refers both to acts that it believes constitute crimes against
humanity and war crimes within the meaning of articles 7 and 8 of the Statute,
respectively. Accordingly, the Chamber will consider whether there are reasonable
grounds to believe that acts constituting war crimes have been committed, before
considering whether there are reasonable grounds to believe that crimes against
humanity have been committed.
1. War crimes
(a) Whether there are reasonable grounds to believe that the contextual element of at leastone war crime within the jurisdiction of the Court is present
31. According to the Prosecution Application, Ahmad Harun and Ali Kushayb are
criminally responsible for committing acts constituting war crimes under article 8 (2)
22 See for instance, IACHR, Case of Bamaca Velasquez v. Guatemala, "Judgement", 25 November 200, Series CNo. 70, paras. 138-144, IACHR, Case of Loayza-Tamayo v. Peru, "Judgement", 17 September 1997, Series CNo 33, paras. 49-55, and IACHR, Case of Gangaram Pandray v. Suriname, "Judgement", 21 January 1994,Series C, No. 16, paras. 46-51. ICC-01/04-01/06-8-Corr, para. 12.
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(c) and 8 (2) (e) of the Statute between August 2003 and March 2004. The Prosecution
submits that these conducts took place in the context of an armed conflict not of an
international character, which occurred in the region of Darfur, Sudan. In its
application, the Prosecution indeed alleges that as a result of the missions conducted
in Sudan it has obtained information in respect, inter alia, of events relating to the
ongoing conflict in Darfur. The Prosecution further submits that between 2003 and
2006, the Armed Forces and/or the Militia/Janjaweed conducted hundreds of attacks
on towns and villages in Darfur, Sudan. In this regard, the Prosecution underlines
the fact that the vast majority of the killings which were carried out occurred during
the year beginning in April 2003 and ending in April 2004.
32. Article 8 (2) (c) and 8 (2) (e) of the Statute deal with acts which have been
committed in the course of a conflict not of an international character.
33. Article 8 (2) (f) of the Statute defines "conflicts not of an international
character" for the purpose of article 8 (2) (e) of the Statute, and provides that:
Paragraph 2 (e) applies to armed conflicts not of an international character and thusdoes not apply to situations of internal disturbances and tensions, such as riots,isolated and sporadic acts of violence or other acts of a similar nature. It applies toarmed conflicts that take place in the territory of a State when there is a protractedarmed conflict between governmental authorities and organized armed groups orbetween such groups.
34. The Chamber recalls that the involvement of armed groups with some degree
of organisation and the ability to plan and carry out sustained military operations
would allow for the conflict to be characterised as an armed conflict not of an
international character.
35. The Chamber notes that article 8 (2) (f) of the Statute makes reference to
"protracted armed conflict between [...][organized armed groups]". In the opinion of
the Chamber, this focuses on the need for the armed groups in question to have the
ability to plan and carry out military operations for a prolonged period of time
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36. In the present case, the main actors of the conflict were allegedly the
Government of the Sudan confronted by an insurgency mounted by armed rebel
movements, including the Sudan Liberation Movement/Army (SLM/A) and the
Justice and Equality Movement (JEM), which sought political change through
military means by launching attacks in Darfur, Sudan. This resulted in a government
military campaign against these armed groups.23 On the side of the Government of
the Sudan, the combatants include the Sudan People's Armed Forces ("the Sudanese
Armed Forces") and the Popular Defence Forces ("the PDF").24 The Government of
the Sudan also relied on militia primarily drawn from Arab tribes, namely the
Militia/Janjaweed.25
37. Furthermore, there are reasonable grounds to believe that the SLM/A and the
JEM were the two main rebel groups opposing the Khartoum government, who
organized themselves between 2001 and 2002 and launched their military activities in
2002. According to the Prosecution Application, the SLM/A is divided into a political
wing, the "Movement", and a military wing, the "Army", and its main military
leader and Secretary General is Minnie Arkawi Minawi.26 The JEM is also a political
movement with military capacity in the form of an organised military wing.
38. The armed rebel groups, notably the SLM/A and the JEM, launched several
attacks in Darfur, in particular: in December 2002 in the Jebel Marra locality; in
March/April 2003, on government installations in Kutum and Tine; on 25 April 2003,
on the Al Fashir airport; in July 2003, on the police station in Bindisi; in August 2003,
on a Central reservists office in Mukjar; and in December 2003, on the garrison at
Abu Gamara.27
23 Prosecution Application, paras. 20-22 and 170-172; Prosecution Submission, AnxA2; Prosecution Submission,AnxAlS, paras. 127-37; Prosecution Submission, AnxA54; Prosecution Submission, AnxAol; ProsecutionSubmission, AnxA73; Prosecution Submission, AnxASO; Prosecution Submission, AnxASl, pp. 66-96.24 Prosecution Application, para. 23; Prosecution Submission, AnxAlS, paras. 78-84.25 Prosecution Application, paras. 24, 81 and 82; Prosecution Submission, AnxA65, p. 36.26 The Prosecution also calls him "Minni Manawi" in the Prosecution Application, para. 21.27 Prosecution Application, paras. 44-46, 51 and 184; Prosecution Submission, AnxA39, paras. 36 and 49;Prosecution Submission, AnxA42, paras. 31 and 32; Prosecution Submission, AnxA43, paras. 175 and 176;Prosecution Submission, AnxA46, para. 52; Prosecution Submission, AnxA79, para. 62.
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39. There are reasonable grounds to believe that the SLM/'A and the JEM entered
into several binding agreements with the Government of the Sudan, including the
Peace Agreement between the Government of the Sudan and the SLM/A signed on 3
and 4 September 2003 and the Cease fire agreement signed on 8 April 2004 between
the Government of the Sudan, and the SLM/A and JEM.28 Accordingly, the Chamber
finds that there are reasonable grounds to believe that the presence and
representation of the SLM/A and JEM at peace talks shows that the Government of
the Sudan considered them to be key actors in the Darfur conflict.
40. For its part, in the context of its counter-insurgency campaign strategy, the
government carried out several operations that can be divided into different phases
during which attacks were launched by the Sudanese Armed Forces and/or
Militia/Janjaweed.29 In this regard, there are reasonable grounds to believe that, in
response to the above-mentioned rebel attack on the Al Fashir airport on 25 April
2003, the Government of the Sudan increased its military operations in North and
West Darfur. In particular, it launched two military operations in "Dar Zaghawa" in
July and August 2003 and proceeded to recruit Militia/Janjaweed.30
41. Also, there are reasonable grounds to believe that the Sudanese Armed Forces
and Militia/Janjaweed launched attacks throughout Darfur, Sudan, including attacks
on the towns of Tawila on or about 5 March 2003 and on 1 July 2004, Furawiya in
May and December 2003, Adwa on 23 November 2004.31
28 Prosecution Application, para. 57; Prosecution Submission, AnxA56, para 7 and AnxA48, para.7.29 Prosecution Application, paras. 38-40, 44-60; Prosecution Submission, AnxA48, p. 1, Footnote 1 and pp. 6-9;Prosecution Submission, AnxA42, paras. 25-51; Prosecution Submission, AnxA46, paras. 51-52; ProsecutionSubmission, AnxA64, p 4; Prosecution Submission, AnxA40, para. 42; Prosecution Submission, AnxA24, pp1-2; Prosecution Submission, AnxAS, p. 3; Prosecution Submission, AnxA31, p. 7; Prosecution Submission,AnxA47, p l, Prosecution Submission, AnxA52; Prosecution Submission, AnxA39, para 36; ProsecutionSubmission, AnxA61, Prosecution Submission, AnxA37, p 8, Prosecution Submission, AnxA67, pp. 5-6;Prosecution Submission, AnxAS, p. 2; Prosecution Submission, AnxA25, Prosecution Submission, AnxA59, pp.22-23 and 28; Prosecution Submission, AnxA29, p. 2
Prosecution Application, para. 47, Prosecution Submission, AnxA40, para. 42; Prosecution Submission,AnxA24, pp 1-2; Prosecution Submission, AnxAS, p. 3, Prosecution Submission, AnxASl, p 7; ProsecutionSubmission, AnxA64, p. 4.31 Prosecution Application, para. 102; Prosecution Submission, AnxA86, Prosecution Submission, AnxA87,Prosecution Submission, AnxA88, Prosecution Submission, AnxAlS, paras 253, 272, 275 and 297; Prosecution
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42. Furthermore, the Chamber finds that there are reasonable grounds to believe
that the Sudanese Armed Forces and the Militia/Janjaweed attacked the towns of
Kodoom, Bindisi, Mukjar and Arawala and their surrounding areas between August
2003 and March 2004, while these towns were devoid of any rebel activities and
while the civilian population was not taking any active part in the hostilities.
43. The Prosecution maintains that, according to the non-international character
of the conflict, the allegedly criminal acts referred to in the Prosecution Application
constitute war crimes within the meaning of article 8(2)(c) and article 8(2)(e) of the
Statute. Accordingly, the Chamber considers that, pursuant to articles 8(2)(c) and
8(2)(e) and the corresponding Elements of Crimes, the alleged criminal acts must be
committed in the context of and be associated with an armed conflict not of an
international character.
44. In light of the Prosecution Application and its supporting material, the
Chamber finds that there are reasonable grounds to believe that the conflict in
Darfur, Sudan, which started from about August 2002, was not of an international
character. The conflict arose when the Government of the Sudan, in an attempt to
curb the rebellion, reacted by using the Sudanese Armed Forces against the above-
mentioned armed rebel movements, including the SLM/A and the JEM.32
45. Moreover, the Chamber notes that, while there have been attempts at peace
talks and that peace agreements were signed during the period relevant to the
Prosecution Application, the JEM refused to take part in some of the peace talks and
that following the peace agreements, other attacks were launched by both parties.33
46. Accordingly, there are reasonable grounds to believe that during the period
relevant to the Prosecution Application, there was a protracted armed conflict within
the meaning of article 8(2)(f) of the Statute between the Sudanese Armed Forces
Submission, AnxA60; Prosecution Submission, AnxA32, paras. 21 and 30-31; Prosecution Submission,AnxA35, paras. 85-86.32 Prosecution Application, para. 44; Prosecution Submission, AnxA-18, para. 63.33 Prosecution Application, paras. 50-51.
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along with the Militia/Janjaweed against the organised rebel groups, including the
SLM/AandtheJEM.
47. On the basis of the evidence and information provided, the Chamber is of the
view that there are reasonable grounds to believe that the alleged criminal acts were
committed in the context of and were associated with the armed conflict in Darfur,
Sudan which occurred from about August 2002 until at least the time relevant to the
Prosecution Application. Indeed, there are reasonable grounds to believe that the
attacks on the towns mentioned in the Prosecution Application were carried out by
the Sudanese Armed Forces and the Militia/Janjaweed, acting in concert, in the
context of the above-mentioned counter-insurgency campaign conducted in phases
marked by rebel activity and broken peace agreements.34
(b) Whether there are reasonable grounds to believe that the criminal acts referred to inthe Prosecution Application of at least one war crime within the jurisdiction of the Court arepresent
48. The Prosecution alleges that the Sudanese Armed Forces and the
Militia/Janjaweed murdered civilians primarily from the Fur, Zaghawa and Masalit
populations in towns inhabited mainly by the Fur, Zaghawa and Masalit, including:
• Kodoom and surrounding areas, on or about 15 August 200335 and
on or about 31 August 2003;36
• Bindisi and surrounding areas, on or about 15 August 2003;37
34 Prosecution Application paras. 42-60; Prosecution Submission, AnxA67; Prosecution Submission, AnxA48, p.1, Footnote 1, pp. 6-9; Prosecution Submission, AnxA42, paras. 25-51; Prosecution Submission, AnxA46, paras.51-52; Prosecution Submission, AnxA64, p. 4; Prosecution Submission, AnxA40, para. 42; ProsecutionSubmission, AnxA24, pp. 1-2; Prosecution Submission, AnxAS, p. 3; Prosecution Submission, AnxA31, p. 7;Prosecution Submission, AnxA47, p. 1; Prosecution Submission, AnxA52; Prosecution Submission, AnxA39,para. 36; Prosecution Submission, AnxAol; Prosecution Submission, AnxA37, p. 8; Prosecution Submission,AnxA67, pp. 5-6; Prosecution Submission, AnxAS, p. 2; Prosecution Submission, AnxA25; ProsecutionSubmission, AnxA59, pp. 22-23 and 28; Prosecution Submission, AnxA29, p. 2.35 Prosecution Application, para. 196; Prosecution Submission, AnxA39, paras. 59 and 66.^Prosecution Application, para. 197; Prosecution Submission, AnxA39, paras. 82, 84, 85, 87 and 88.37 Prosecution Application, para. 205, 209-210; Prosecution Submission, AnxA32, paras. 42-43; ProsecutionSubmission, AnxA34, para. 105; Prosecution Submission, AnxA35, paras. 57, 73-74; Prosecution Submission,AnxA79, paras. 81 and 85.
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• Mukjar and surrounding areas, between September 2003 and
October 2003,38 in or around December 200339 and in or around
March 2004;40
• Arawala and surrounding areas, in or around December 2003.41
49. The Prosecution also alleges that members of the Sudanese Armed Forces and
the Militia/Janjaweed committed outrages upon the personal dignity of women and
girls primarily from the Fur, Zaghawa and Masalit populations in the town of
Arawala and surroundings areas in or around December 2003.42
50. The Prosecution again alleges that members of the Sudanese Armed Forces
and Militia/Janjaweed raped primarily Fur, Zaghawa and Masalit women and girls
in the town of Bindisi and surrounding areas on or about 15 August 200343 and in the
town of Arawala in or around December 2003.w
51. The Prosecution further alleges that the Sudanese Armed Forces and the
Militia/Janjaweed intentionally directed attacks against the primarily Fur, Zaghawa
and Masalit civilian populations not taking direct part in the hostilities, in the towns
of:
• Kodoom and surrounding areas, from on or about 15 August 2003
to on or about 31 August 2003;45
38 Prosecution Application, para. 228; Prosecution Submission, AnxA34, para. 61.39 Prosecution Application, para. 229; Prosecution Submission, AnxA34, paras. 62-65; Prosecution Submission,AnxA58, pp. 3-6.40 Prosecution Application, para. 230; Prosecution Submission, AnxA79, para. 100; Prosecution Submission,AnxA41, paras. 67-71; Prosecution Submission, AnxA39, paras. 143-146 and 148-52.41 Prosecution Application, para. 243; Prosecution Submission, AnxA36, paras. 126-128 and 134-138.Prosecution Submission, AnxA33, paras. 32, 39, 41, 52-53, 58-59; Prosecution Submission, AnxA38, para. 38;Prosecution Submission, AnxA63, p. 37.42 Prosecution Application, para. 247; Prosecution Submission, AnxA33, paras. 40-41.43Prosecution Application, para. 211; Prosecution Submission, AnxA35, paras. 67-72 and 77-79; ProsecutionSubmission, AnxA34, p. 10, paras. 41-45.44 Prosecution Application, para. 244-247; Prosecution Submission, AnxA36, paras. 82-116; ProsecutionSubmission, AnxA33, p. 10, paras. 39-48.45 Prosecution Application, para. 193 and 195; Prosecution Submission, AnxA39, paras. 62-66 and 81-95.
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• Bindisi and surrounding areas, on or about 15 August 2003;46
• Mukjar and surrounding areas, between August 2003 and March
2004;47
• Arawala and surrounding areas, in or around December 2003,48
52. The Prosecution further alleges that the Sudanese Armed Forces and the
Militia/Janjaweed pillaged property belonging primarily to the Fur, Zaghawa and
Masalit populations in the towns of:
49Bindisi and surrounding areas, on or about 15 August 2003;
• Mukjar and surrounding areas, between August 2003 and March
2004;50
• Arawala and surrounding areas, in or around December 2003.51
53. Finally, the Prosecution alleges that the Sudanese Armed Forces and the
Militia/Janjaweed destroyed property belonging primarily to the Fur, Zaghawa and
Masalit populations in the towns of:
• Kodoom and surrounding areas, from on or about 15 August 2003
to on or about 31 August 2003;52
46 Prosecution Application, paras. 204-206; Prosecution Submission, AnxA32, paras. 19-24; ProsecutionSubmission, AnxA41, paras. 39 and 40; Prosecution Submission, AnxAll, pp. 4-5; Prosecution Submission,AnxA34, paras. 23-25 and 37-38; Prosecution Submission, AnxA39, para. 70; Prosecution Submission,AnxA51, paras. 25-28; Prosecution Submission, Exp-AnxA79, paras. 76-84; Prosecution Submission, AnxA35,paras. 41-61.47 Prosecution Application, paras. 218-221; Prosecution Submission, AnxA41, para. 40; Prosecution Submission,AnxA35, paras. 85 and 86; Prosecution Submission, AnxA20, p. 4.48 Prosecution Application, paras. 239-242; Prosecution Submission, AnxA53, paras. 73-79; ProsecutionSubmission, AnxA36, paras. 57-59 and 71; and Prosecution Submission, AnxA33, paras. 28-39.49 Prosecution Application, para. 216; Prosecution Submission, AnxA32, para. 23; Prosecution Submission,AnxA34, paras. 29 and 35; Prosecution Submission, AnxA35, para. 53; Prosecution Submission, AnxA79, para.79; and Prosecution Submission, AnxA20, p. 4.50 Prosecution Application, paras. 233-235; Prosecution Submission AnxA79, paras. 69 and 70; ProsecutionSubmission, AnxA39, paras. 135-136; and Prosecution Submission, AnxA34, paras. 68-69.51 Prosecution Application, paras. 240, 241 and 249; Prosecution Submission AnxA36, paras. 74 and 141-142.
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Bindisi and surrounding areas, on or about 15 August 2003;53
Mukjar and surrounding areas, between August 2003 and March
2004;54
55Arawala and surrounding areas, in or around December 2003.
54. There are reasonable grounds to believe that, acting together as part of the
counter-insurgency campaign, the Sudanese Armed Forces and Militia/Janjaweed
carried out attacks on the above-mentioned towns.56
55. In particular, there are reasonable grounds to believe that during the attack on
Kodoom, members of the Sudanese Armed Forces drove around the Kodoom area
telling villagers that the Militia/Janjaweed would be going to a nearby village to
collect Islamic Tax or "Zakat". Afterwards, Militia/Janjaweed on horse- and camel-
back together with members of the Sudanese Armed Forces in vehicles attacked the
Kodoom area.57 Militia/Janajweed and members of the Sudanese Armed Forces
surrounded the four Kodoom villages. Members of the Militia/Janjaweed entered the
Kodoom villages while others stalked the outskirts and fired upon villagers as they
fled.58
56. There are also reasonable grounds to believe that in the attack on Bindisi,
members of the Sudanese Armed Forces arrived in Land Cruisers, again announcing
52 Prosecution Application, para. 199; Prosecution Submission, AnxA39, para. 65.53 Prosecution Application, paras. 214-215; Prosecution Submission, AnxA32, para. 41; Prosecution Submission,AnxA35, para. 53; and Prosecution Submission, AnxA79, para. 83.54 Prosecution Application, para. 232; Prosecution Submission, AnxA35, paras. 85-86 and ProsecutionSubmission, AnxA41, para. 52.55 Prosecution Application, paras. 239 and 249; Prosecution Submission, AnxA36, para. 143.56 Prosecution Application paras. 42-60; Prosecution Submission, AnxA67; Prosecution Submission, AnxA42,paras. 25-26, 31, 34 and 51; Prosecution Submission, AnxA46, para. 52; Prosecution Submission, AnxA64, p. 5;Prosecution Submission, AnxA40, para. 42; Prosecution Submission, AnxA31, p. 7; Prosecution Submission,AnxA47, p. 1 ; Prosecution Submission, AnxA47, pp. 8-9; Prosecution Submission, AnxA86, para. 36.57 Prosecution Application, para. 192; Prosecution Submission, AnxA32, para. 17; Prosecution Submission,AnxA39, para. 39.58 Prosecution Application, para. 195; Prosecution Submission, AnxA39, paras. 81-99.
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that Militia/Janjaweed would return later to collect Islamic Tax (Zakat).59 The town
was attacked by members of the Sudanese Armed Forces travelling in a number of
camouflaged coloured Land Cruisers mounted with heavy machine guns together
with Militia/Janajweed on horse- and camel-back and some on foot.60 Four Land
Cruisers each containing 40/50 members of the Sudanese Armed Forces were used in
the attack. The attackers also included more than 500 Militia/Janjaweed. Three
Sudanese Air Force planes also dropped bombs. The attack continued with members
of the Sudanese Armed Forces and the Militia/Janjaweed going from house to house
in search of the remaining residents and killing those they found.61
57. In addition, there are reasonable grounds to believe that both the
Militia/Janjaweed and members of the Sudanese Armed Forces camped outside
Mukjar town. After a speech given by Ahmad Harun in Mukjar, the
Militia/Janjaweed pillaged the town and its market for several hours, carrying away
the looted goods on horse- and camel-back.62
58. Furthermore, there are reasonable grounds to believe that during the attack on
the town of Arawala, members of the Sudanese Armed Forces and the
Militia/Janjaweed shot and killed civilians and also pillaged the town.63 Soon after the
attack, women from the town were raped and civilians were further subjected to
59 Prosecution Application, para. 202; Prosecution Submission, AnxA32, para. 20; Prosecution Submission,AnxA41, para. 39; Prosecution Submission, AnxASl, paras. 24-25.60 Prosecution Application, para. 203; Prosecution Submission, AnxASl, para. 30; Prosecution Submission,AnxASO, para. 84.61 Prosecution Application, para. 205; Prosecution Submission, AnxA32, paras. 23 and 41; ProsecutionSubmission, AnxASO, para. 83; Prosecution Submission, AnxA35, para. 66; Prosecution Submission, AnxASO,para. 85.62 Prosecution Application, para. 234; Prosecution Submission, AnxASO, paras. 69-70; Prosecution Submission,AnxA34, paras. 66-69; Prosecution Submission, AnxA39, paras. 124-126.63 Prosecution Application, para. 239; Prosecution Submission, AnxA33, paras. 29-31 and 33-35; ProsecutionSubmission, AnxA44, para. 38; Prosecution Submission, AnxA38, para. 16; Prosecution Submission, AnxA35,paras. 27-29 and 38; Prosecution Submission, AnxA53, para. 79; Prosecution Submission, AnxA36, paras. 57,71 and 61-76.
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deprivation of liberty and other inhumane acts coupled with cruel treatment. As a
direct result of the attack on Arawala, villagers were forcibly transferred.M
59. Having considered and analysed the Prosecution Application and its
supporting material, in particular the report of the International Commission of
Inquiry on Darfur and the witness statements, the Chamber is of the view that the
information contained in the documents leads it to conclude that there are reasonable
grounds to believe that, between August 2003 and March 2004, the specific elements
of war crimes within the jurisdiction of the Court were met under article 8(2)(c)(i),
8(2)(c)(ii), 8(2)(e)(i), 8(2)(e)(v), 8(2)(e)(vi) and 8(2)(e)(xii) of the Statute.
2. Crimes against humanity
(a) Whether there are reasonable grounds to believe that the contextual elements of atleast one crime against humanity within the jurisdiction of the Court have been met
60. The Prosecution alleges that the Sudanese Armed Forces, along with the
Militia/Janjaweed, implemented a policy of attacking the civilian population by
committing acts including rape, murder or forcible transfer in the towns of Kodoom,
Bindisi, Mukjar and Arawala and their surrounding areas between August 2003 and
March 2004. The Prosecution further submits that, according to the information in its
possession, the Sudanese Armed Forces and the Militia/Janjaweed launched
hundreds of attacks between 2003 and 2006 against civilian populations. As a result,
the Prosecution concludes that those attacks can be considered to be both
geographically widespread and to have been committed over an extensive period of
time. The Prosecution further states that the systematic character of those attacks can
be inferred from the fact that they were perpetrated in furtherance of a plan or policy
consisting in attacking the civilian population.65
64 Prosecution Application, paras. 248-250; Prosecution Submission, AnxA32, para. 41; Prosecution Submission,AnxA38, para. 39, Prosecution Submission, AnxA36, paras. 14 and 139; Prosecution Submission, AnxA64, p.37.65 Prosecution Application, para. 168.
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61. Pursuant to article 7(1) of the Statute, in order to constitute a crime against
humanity, the acts must have been committed as part of a widespread or systematic
attack directed against any civilian population. Pursuant to article 7(2)(a) of the
Statute, an attack directed against a civilian population is defined as a "course of
conduct involving the multiple commission of acts referred to in paragraph 1 against
any civilian population, pursuant to or in furtherance of a State or organisational
policy to commit such an attack".
62. The reference to a widespread or systematic attack has been interpreted as
excluding random or isolated acts of violence from the notion of crimes against
humanity.66 Nevertheless, it is still necessary to assess the systematic or widespread
nature of the attack. In light of these arguments, the Chamber is of the view that
"widespread" refers "to the large-scale nature of the attack and the number of
targeted persons", while "systematic" refers to "the organised nature of the acts of
violence and the improbability of their random occurrence."67 The Chamber is also of
the view that the existence of a State or organisational policy is an element from
which the systematic nature of an attack may be inferred.68
63. There are indeed reasonable grounds to believe that the above-mentioned
attacks were of a systematic and widespread nature. As described by several
documents including the Report of the International Commission of Inquiry on
Darfur and witness statements, there are reasonable grounds to believe that the
above-mentioned attacks often shared a common pattern. They have been
consistently described as coordinated ground attacks where the Militia/Janjaweed,
riding on horse- or camel-back, arrived along with members of the Sudanese Armed
66 The Prosecutor v Rutaganda, Case No. ICTR-96-3-T, Trial Judgement, 6 December 1999, paras. 67-69. Seealso The Prosecutor v Kayishema and Ruzindana, Case No. ICTR-95-1-T, Trial Judgement, 21 May 1999,paras. 122-123.61 The Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-A, Appeal Judgement, 17 December 2004, para. 94.See also, The Prosecutor v. Blagojevic & Jokic, Case No. IT-02-60-T, Trial Judgment, 17 January 2005, paras.545-546.68 The Prosecutor v Kunarac et al, Case No. IT-96-23 & IT-96-23/1-A, Appeal Judgement, 12 June 2002, para98
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Forces travelling in motor vehicles such as Land Cruisers.69 Moreover, according to
the same documents and witness statements, there are reasonable grounds to believe
that, on several occasions, the ground attacks were preceded by aerial bombardments
by the Sudanese Air Force.70
64. There are also reasonable grounds to believe that the above-mentioned attacks
were of a large scale nature and targeted a large number of persons. According to the
Prosecution Application and its supporting material, between 2003 and 2006, the
Sudanese Armed Forces and/or the Militia/Janjaweed launched hundreds of military
attacks in Darfur targeting a large number of persons.71 Moreover, regarding the
attacks on the towns of Kodoom, Bindisi, Mukjar and Arawala between August 2003
and March 2004 as referred to in the Prosecution Application, there are reasonable
grounds to believe that they were launched by the Sudanese Armed Forces and the
Militia/Janjaweed acting in concert72 and that they caused approximately 1000
civilian victims.73
65. There are reasonable grounds to believe that the Government of the Sudan, in
a bid to fight the rebels, followed a "unified strategy". At the national level, there
was a "Darfur Security Desk", also known as the "Darfur Security file". At the state
level, State Security Committees were used to organise the actions of the Sudanese
Armed Forces, the police, the PDF, the police reservist force known as the Popular
Police Force ("the PPF"), the National Security and Intelligence Service and the
Militia/Janjaweed. The Militia/Janjaweed acted in concert with the Sudanese Armed
69 Prosecution Application, paras. 102 and 104; Prosecution Submission, AnxAlS, paras. 186, 239 and 242.70 Prosecution Application, paras.103-104; Prosecution Submission, AnxAlS, paras. 186 and 243.71 Prosecution Application, paras. 27-28 and 101; Prosecution Submission, AnxA74; Prosecution Submission,AnxAl, Prosecution Submission AnxAlS, para. 301.72 Prosecution Application, paras. 26, 102, 162 and 182; Prosecution Submission, AnxA86; ProsecutionSubmission, AnxA87; Prosecution Submission, AnxA85; Prosecution Submission, AnxAlS, paras. 253, 275,297 and 272; Prosecution Submission, AnxA32, paras. 21 and 30-31; Prosecution Submission, AnxA35, paras.27-28, 67-72 and 85-86.73 Prosecution Application, paras.26, 189, 190, 225, 228-232, 243-244, 247 and 250; Prosecution Submission,AnxA35, paras. 43 and 85-86; Prosecution Submission, AnxA32, paras. 17, 20-21 and 23; ProsecutionSubmission, AnxA37, p. 10; Prosecution Submission, AnxA34, paras. 52-65; Prosecution Submission, AnxA58;Prosecution Submission, AnxA79, paras. 93-94 and 100-101; Prosecution Submission, AnxA41, paras. 52, 65-67, 69-71; Prosecution Submission, AnxA39, paras. 70 and 143-146.
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Forces and were generally integrated into the PDF or the PPF74 and acted under their
command.75 There are also reasonable grounds to believe that the Militia/Janjaweed
received training at PDF and PPF training centres,76 were paid and armed by the
Sudanese authorities77 and their leaders often wore the uniforms of the Sudanese
Armed Forces, the PDF and PPF.78
66. At the local level, there were locality committees also composed of
representatives of the Government of the Sudan, the Sudanese Armed Forces, the
Police, and the National Security and Intelligence Service as well as a representative
of the PPF and the PDF. There are reasonable grounds to believe that the role of the
PDF representative was to coordinate militia activities with the relevant tribal
leaders.79
67. Moreover, there are reasonable grounds to believe that the acts referred to in
the Prosecution Application were committed pursuant to or in furtherance of a State
or organisational policy to commit such attacks against the civilian population of
Darfur. In this regard, there are reasonable grounds to believe that these acts were
committed as part of a policy designed to attack the civilian population who were
perceived as being associated with the rebels, namely civilians primarily from the
Fur, Zaghawa and Masalit tribes in the towns of Kodoom, Bindisi, Mukjar and
Arawala and surrounding areas.
74 Prosecution Application, paras. 90, 92-96. These State Security Committees were given a key role, such asordering reconnaissance missions, creating reserve forces, monitoring weapons supplies to rebels, ensuringsufficient levels of patrol activities, mobilising PDF, increasing the police presence in a town, and creating jointforces comprised of army, police and security services. Each State Security Committee was composed ofrepresentatives of the different governmental bodies involved in the counterinsurgency campaign, therefore itincluded the Governor of the State, the Area Military Leader (a representative of the Armed Forces), the PoliceCommander of the State, the Director of the State Legal Directorate, and the Commissioners of the State'slocalities.75 Prosecution Application, para. 77; Prosecution Submission, AnxA12, p. 2.76 Prosecution Application, paras. 78, 153; Prosecution Submission, AnxA43, para. 95; Prosecution Submission,AnxA46, para. 67; Prosecution Submission, AnxA77.77 Prosecution Application, para. 80; Prosecution Submission, AnxASO, para. 112; Prosecution Submission,AnxA45, para. 108; Prosecution Submission, AnxA43, para. 110; Prosecution Submission, AnxA79, para. 58.78 Prosecution Application, para. 81; Prosecution Submission, AnxA40, para. 38.79 Prosecution Application, para. 95; Prosecution Submission, AnxA69, p. 13; Prosecution Submission, AnxA21,pp. 13-14; Prosecution Submission, AnxA42, para. 128; Prosecution Submission, AnxA12, p. 2.
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(b) Whether there are reasonable grounds to believe that the criminal acts referred to inthe Prosecution Application of at least one crime against humanity within the jurisdiction ofthe Court are present
68. The Prosecution alleges that, from in or about 15 August 2003 to in or around
March 2004, the Sudanese Armed Forces and the Militia/Janjaweed murdered
civilians primarily from the Fur, Zaghawa and Masalit populations in the
predominantly Fur towns of:
• Kodoom and surrounding areas, on or about 15 August 200380 and
on or about 31 August 2003;81
• Bindisi and surrounding areas, on or about 15 August 2003;82
• Mukjar and surrounding areas, between September 2003 and
October 2003,83 in or about December 200384 and in or around March
2004;85
86• Arawala and surrounding areas, in or around December 2003.
69. The Prosecution also alleges that the Sudanese Armed Forces and the
Militia/Janjaweed forcibly transferred primarily Fur, Zaghawa and Masalit civilians
in the predominantly Fur towns of:
• Kodoom and surrounding areas, on or about 15 August 2003 to on
or about 31 August 2003;87
Prosecution Application, para. 196; Prosecution Submission, AnxA39, paras. 59 and 66.81 Prosecution Application, para. 197; Prosecution Submission, AnxA39, paras. 82, 84, 85, 87 and 88.82 Prosecution Application, para. 205, 209-210; Prosecution Submission, AnxA32, paras. 42-43; ProsecutionSubmission, AnxA34, para. 105; Prosecution Submission, AnxA35, paras. 57, 73-74; Prosecution Submission,AnxA79, paras. 81 and 85.83 Prosecution Application, para. 228; Prosecution Submission, AnxA34, para. 61.84 Prosecution Application, para. 229; Prosecution Submission, AnxA34, paras. 62-65; Prosecution Submission,AnxA58, pp. 3-6.85 Prosecution Application, para. 230; Prosecution Submission, AnxA79, para. 100; Prosecution Submission,AnxA41, paras. 67-71; Prosecution Submission, AnxA39, paras. 143-146.86 Prosecution Application, para. 243; Prosecution Submission, AnxA36, p. 17-19, paras. 126-128 and 134-138.Prosecution Submission, AnxA33,paras. 32, 39, 41, 52-53, 58-59; Prosecution Submission, AnxA32, para. 40;Prosecution Submission, AnxA38, para. 38; Prosecution Submission, AnxA63, p. 37.
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• Bindisi and surrounding areas, on or about 15 August 2003;88
• Arawala and surrounding areas, in or around December 2003.89
70. The Prosecution further alleges that the Sudanese Armed Forces and
Militia/Janjaweed imprisoned or severely deprived the primarily Fur, Zaghawa and
Masalit civilians of their physical liberty in the town of Mukjar and surrounding
areas in or about August 2003.90
71. The Prosecution alleges that the Sudanese Armed Forces and the
Militia/Janjaweed tortured civilians from the primarily Fur, Zaghawa and Masalit
populations in Mukjar in or about August 2003.91
72. The Prosecution further alleges that members of the Sudanese Armed Forces
and Militia/Janjaweed raped primarily Fur women and girls in the town of Bindisi
and surrounding areas on or about 15 August 200392 and in the town of Arawala in or
around December 2003.93
73. The Prosecution again alleges that the Sudanese Armed Forces and the
Militia/Janjaweed inflicted inhumane acts causing great suffering, or serious injury to
body or to mental or physical health upon the primarily Fur, Zaghawa and Masalit
populations in the town of Bindisi and surrounding areas on or about 15 August
87 Prosecution Application, para. 199; Prosecution Submission, AnxA39, para. 65; Prosecution Submission,AnxA32, para. 17; Prosecution Submission, AnxA35, paras. 41-42.88 Prosecution Application, paras. 214-215; Prosecution Submission, AnxA32, para. 23, and 41; ProsecutionSubmission, AnxA35, paras. 50-61; Prosecution Submission, AnxA79, paras. 57, 83 and 87; ProsecutionSubmission, AnxA20, p. 4; Prosecution Submission, AnxA39, para. 103; Prosecution Submission, AnxA41,para. 40.
9 Prosecution Application, para. 250; Prosecution Submission, AnxA36, paras. 134 and 139; ProsecutionSubmission, AnxA63, pp. 37-38.90 Prosecution Application, paras. 223 and 225; Prosecution Submission, AnxA41, paras. 46-51; ProsecutionSubmission, AnxA34, paras. 52-53 and 88; Prosecution Submission, AnxA39, paras. 102-112.91 Prosecution Application, paras. 223, 225-227; Prosecution Submission, AnxA34, paras. 53-60; ProsecutionSubmission, AnxA39, paras. 111-112; Prosecution Submission, AnxA35, para. 84; Prosecution Submission,AnxA41, paras. 46-4792 Prosecution Application, para. 211; Prosecution Submission, AnxA35, paras. 67-72 and 77-79; ProsecutionSubmission, AnxA34, p. 10, paras. 41-43.93 Prosecution Application, para. 244; Prosecution Submission, AnxA36, pp. 12-16, paras. 82-116; ProsecutionSubmission, AnxA33, p. 10, paras. 39-48.
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200394and in the town of Arawala and surrounding areas in or around December
2003.95
74. Finally, the Prosecution alleges that the Sudanese Armed Forces and the
Militia/Janjaweed launched attacks against specific localities believing that they were
predominantly inhabited by the Fur population.96 The Prosecution is thus of the view
that those acts may constitute persecution of the primarily Fur population of the
towns of:
• Kodoom and surrounding areas, from on or about 15 August 2003
to on or about 31 August 2003 through murder, attacks upon the
civilian population, destruction of property and forcible transfer of
the population;97
• Bindisi and surrounding areas, on or about 15 August 2003 through
murder, rape, attacks upon the civilian population, inhumane acts,
pillaging, destruction of property and forcible transfer of the
population;98
• Mukjar and surrounding areas, between August 2003 and March
2004 through murder, attacks upon the civilian population,
imprisonment or severe deprivation of physical liberty, torture,
pillaging and destruction of property;99
• Arawala and surrounding areas, in or around December 2003
through murder, rape, attacks upon the civilian population,
94 Prosecution Application, para. 213; Prosecution Submission, AnxA32, para. 22; Prosecution Submission,AnxA35, paras. 58-59, 66 and 68-69.95 Prosecution Application, para. 248; Prosecution Submission, AnxA32, para. 40.96 Prosecution Application, paras. 123, 146, 182, 184, 191, 200, 217 and 236.97 See supra.QOy8 See supra.99 See supra.
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outrages upon personal dignity, inhumane acts, pillaging,
destruction of property and forcible transfer of the population.100
75. Having considered and analysed the Prosecution Application and its
supporting material, in particular the report of the International Commission of
Inquiry on Darfur and the witness statements, the Chamber is of the view that the
information contained in the documents leads it to conclude that there are reasonable
grounds to believe that during the period relevant to the Prosecution Application,
the specific elements of crimes against humanity within the jurisdiction of the Court
were met under article 7(l)(a), 7(l)(d), 7(l)(e), 7(l)(f), 7(l)(g), 7(l)(h) and 7(l)(k) of the
Statute.
B. Whether there are reasonable grounds to believe that Ahmad Harun and AllKushayb are criminally responsible for the crimes mentioned above
76. The Prosecution alleges that Ahmad Harun and Ali Kushayb personally
contributed to "a common plan to pursue a shared and illegal objective of attacking
civilian populations in Darfur," and are therefore together responsible under article
25 (3) (d) of the Statute for war crimes and crimes against humanity as referred to in
counts 1-6, 8-15, 17-24, 26, 28, 30, 32, 34-36, 38-44, 46, 48-51 of the Prosecution
Application.
77. With regard to the criminal responsibility of Ali Kushayb, the Prosecution
further alleges that, "in addition" to his responsibility for having contributed to the
common plan, he is criminally responsible under article 25(3)(a) of the Statute for
having personally committed the crimes against humanity and war crimes as
referred to in counts 7, 16, 25, 27, 29, 31, 33, 45 and 47 of the Prosecution
Application.101
100 See supra.101 In this regard, the Chamber recalls that the Statute clearly distinguishes between the following forms ofliability: (i) as a perpetrator (or co-perpetrator), i.e., according to article 25(3)(a), the person who committed thecrime as an individual, jointly with another or through another person; (11) as an accomplice, i.e., the person whocontributed to the commission of the crime pursuant to article 25(3)(b) to (d); and (hi) as a superior pursuant to
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78. With regard to the criminal responsibility of Ahmad Harun, the Prosecution
also alleges that he is criminally responsible under article 25(3)(b) of the Statute for
having induced the commission of the war crime referred to in count 37 of the
Prosecution Application.
79. The Chamber will therefore separately analyse whether there are reasonable
grounds to believe that Ahmad Harun and Ali Kushayb are criminally responsible
for the above-mentioned crimes under article 25(3) (d) and 25(3) (b) and under article
25(3)(a) and 25(3)(d) of the Statute, respectively.
1. Criminal Responsibility of Ahmad Harun
80. The Chamber is of the view that there are reasonable grounds to believe that,
from in or about April 2003 until in or about September 2005, Ahmad Harun served
as Minister of State for the Interior of the Government of the Sudan. There are
reasonable grounds to believe that the Ministry of Interior worked jointly with the
Ministry of Defence and the National Security Apparatus in order to respond to the
rebellion in Darfur.102
81. There are reasonable grounds to believe that, by virtue of his ministerial
capacity, the management of the "Darfur Security desk" was assigned to Ahmad
Harun and that, as such, he oversaw the activities of the Security Committees
responsible for coordinating the counter-insurgency in Darfur.103 The Locality
Security Committees reported to the State Security Committees which, in turn,
reported to the Security Desk headed by Ahmad Harun.104
article 28 of the Statute. Therefore, as was already affirmed by this Chamber, a person cannot be heldresponsible for the same facts under two different modes of liability, i.e., as a perpetrator or a co-perpetrator,pursuant to article 25(3)(a), and as an accomplice, pursuant to article 25(3)(b) to (d), or a supenor, pursuant toarticle 28 of the Statute. See, ICC-01/04-01/06-796-Conf-tEN, paras. 320-321; ICC-01/04-01/06-2-US, p. 4.102 Prosecution Application, paras. 30-31; Prosecution Submission, AnxA42, para. 65; Prosecution Submission,AnxA71, para. 91; Prosecution Submission, AnxA43, paras. 65 and 128.103 Prosecution Application, paras. 112-113.104 Prosecution Application, para. 96; Prosecution Submission, AnxA43, paras. 40 and 49; ProsecutionSubmission, AnxA7, p. 2; Prosecution Submission, AnxA3, p. 2.
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82. Accordingly, there are reasonable grounds to believe that Ahmad Harun
coordinated the efforts of various Government bodies involved in the counter-
insurgency, including the Police, the Sudanese Armed Forces, the National Security
and Intelligence Service and the Militia/Janjaweed, and monitored the work of the
Locality and State Security Committees in Darfur.105 There are reasonable grounds to
believe that, in respect of their counter-insurgency activities in Darfur, both State and
Locality Security Committees reported to Ahmad Harun, who thus in effect
participated directly in and coordinated the work of these Committees.106
83. In addition, there are reasonable grounds to believe that, due to Ahmad
Harun's position at the "Darfur Security desk," he was able to participate personally
in key activities of the Security Committees, namely the recruiting, arming and
funding of Militia/Janjaweed in Darfur.
84. There are reasonable grounds to believe that Ahmad Harun personally and
actively recruited Militia/Janjaweed in Darfur as a "new strategy"107 of the counter-
insurgency in order to "reinforce its human resources."108 Moreover, there are
reasonable grounds to believe that Ahmad Harun ordered the recruitment of
Militia/Janjaweed by announcing that "300 knights" were to be recruited during an
inspection and recruitment visit to a camp in Qardud village, South Darfur. His
orders were executed by the Commissioners of the localities of Nyala and Kass.109
85. Furthermore, there are reasonable grounds to believe that Ahmad Harun
promised to deliver, and did deliver arms to the Militia/Janjaweed in Darfur.110 There
are reasonable grounds to believe that Ahmad Harun, after meeting with a group of
Militia/Janjaweed in the town of AI Geneina, promised to provide them with
Prosecution Application, para. 83.105
106 Prosecution Application, paras. 96-97; Prosecution Submission, AnxA69.107 Prosecution Application, para. 47; Prosecution Submission, AnxA40, para. 42; Prosecution Submission,AnxA31; Prosecution Submission, AnxAS; Prosecution Submission, AnxA64.108 Prosecution Application, para. 122; Prosecution Submission, AnxA12.109 Prosecution Application, para. 125; Prosecution Submission, AnxA78.uo Prosecution Application, paras. 131-137; Prosecution Submission, AnxA43, paras. 105, 122-130 and 141;Prosecution Submission, AnxA40, para. 44; Prosecution Submission, AnxA66; Prosecution Submission,AnxA40, paras. 62-80; Prosecution Submission, AnxA42, paras. 73-76.
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weapons."1 Moreover, there are reasonable grounds to believe that on several
occasions, Ahmad Harun was present at the deliveries of arms and ammunition to
the Militia/Janjaweed and participated in the distribution of the "quota of
firearms".112
86. Moreover, there are reasonable grounds to believe that Ahmad Harun funded
the Militia/Janjaweed and that between 3 August 2003 and 10 August 2003, he
appeared in Mukjar town where he "addressed the tribes" and promised a sum of
money to the Militia/Janjaweed and the continuous support of the government, just
before an attack on the same town occurred.113
87. There are reasonable grounds to believe that the Governors, State and Locality
Security Committees, who either directly or indirectly reported to Ahmad Harun,
were primarily responsible for distributing the salaries of the Militia/Janjaweed to the
tribal leaders (Umdahs), "Emirs and Oqada"114 who then paid the Mililtia/Janjaweed.
There are reasonable grounds to believe that the Militia/Janjaweed was paid upon
registration by PDF coordinators.
88. Having considered all the foregoing information, the Chamber finds that there
are reasonable grounds to believe that, by reason of his position on the Darfur
Security desk and through his overall coordination of and personal participation in
key activities of the Security Committees, Ahmad Harun intentionally contributed to
the commission of the above-mentioned crimes, knowing that his contribution would
further the common plan carried out by the Sudanese Armed Forces and the
Militia/Janjaweed, which consisted in attacking the civilian populations in Darfur.
111 Prosecution Application, para. 132; Prosecution Submission, AnxA43, paras. 122-130 and 141.112 Prosecution Application, paras. 133-137; Prosecution Submission, AnxA43, para. 105; ProsecutionSubmission, AnxA39, paras. 44 and 62-68; Prosecution Submission, AnxA42, paras. 73-76.113 Prosecution Application, paras. 123 and 127; Prosecution Submission, AnxA79, paras. 62-67 and 69;Prosecution Submission, AnxA34, paras. 66-69; Prosecution Submission, AnxA39, paras. 124-126; ProsecutionSubmission, AnxAS; Prosecution Submission, AnxA40, para. 49; Prosecution Submission, AnxASO, para. 112.114 Prosecution Application, para. 129; Prosecution Submission, AnxA40, para 49; Prosecution Submission,AnxASO, para. 112.
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89. Accordingly, the Chamber finds that there are reasonable grounds to believe
that, in light of the available information, Ahmad Harun is criminally responsible
under article 25 (3) (d) of the Statute for war crimes and crimes against humanity as
referred to in counts 1-6, 8-15, 17-24, 26, 28, 30, 32, 34-36, 38-44, 46, 48-51 of the
Prosecution Application.
90. Moreover, there are reasonable grounds to believe that Ahmad Harun
personally incited Militia/Janjaweed to attack the civilian populations on several
occasions.115 In particular, just prior to the attack on Mukjar town at the beginning of
August 2003, he gave a speech in which he stated that "since the children of the Fur
had become rebels, all the Fur and what they had had become booty for the
Mujahidin"116 and he promised a large amount of money to the Militia/Janjaweed
and the continuous support of the government.
91. With regard to this specific episode, there are reasonable grounds to believe
that, as a consequence of the above-mentioned speech,117 the Militia/Janjaweed looted
Mukjar town and its market immediately after Ahmad Harun's departure.
92. There are reasonable grounds to believe that Ahmad Harun had knowledge of
the crimes committed against the civilian population by the Militia/Janjaweed by
virtue of his responsibility for the "Darfur Security desk" and his participation in the
Security Committees,118 as he periodically received reports on rebel activities and the
counter-insurgency. Besides, both at the international and national levels, political
bodies such as the United Nations and its agencies, and the Sudanese National
115 Prosecution Application, paras. 138-142; Prosecution Submission, AnxA7; Prosecution Submission,AnxAll; Prosecution Submission, AnxA32, paras. 20-21 and 30-31; Prosecution Submission, AnxA34, paras.66-69; Prosecution Submission, AnxA39, paras. 60 and 124-126; Prosecution Submission, AnxA42, paras. 69-71; Prosecution Submission, AnxA43, paras. 128-138; Prosecution Submission, AnxA53, para. 79; ProsecutionSubmission, AnxA79, paras. 65-66, 69-70 and 72.116 Prosecution Application, para. 123; Prosecution Submission, AnxA7; Prosecution Submission, AnxA34,paras. 66-69; Prosecution Submission, AnxA79, paras. 62-67 and 69.117 Prosecution Application, paras. 123-124; Prosecution Submission, AnxA79, paras. 65-70.118 Supra paras. 81-83; Prosecution Application, paras. 150 and 156.
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Assembly confronted the Government of the Sudan on fact that civilian populations
were being victimised by the Militia/Janjaweed.119
93. Furthermore, there are reasonable grounds to believe that, in his public
speeches, Ahmad Harun not only demonstrated knowledge of the methods used by
the Militia/Janjaweed, which attacked civilians and pillaged villages, but also
personally encouraged the commission of such illegal acts,120 which he considered
"justified or excusable".121
94. Accordingly, the Chamber finds that there are reasonable grounds to believe
that Ahmad Harun is criminally responsible under article 25(3) (b) of the Statute for
inducing the commission of the war crimes referred to in count 37 of the Prosecution
Application.
2. Criminal responsibility of AH Kushayb
95. The Chamber finds that there are reasonable grounds to believe that Ali
Kushayb was one of the most senior and best known leaders in the tribal hierarchy in
the Wadi Salih Locality. By reason of his position as a tribal leader, he decided to join
the Sudanese Armed Forces together with his tribesmen.122 Around August 2003, he
was formally "appointed to a position" within the Sudanese Armed Forces. More
specifically, there are reasonable grounds to believe that Ali Kushayb was part of the
PDF structure within the Sudanese Armed Forces.123
119 Prosecution Application para. 157; Prosecution Submission AnxA12, Prosecution Submission AnxA75120 Prosecution Application, para. 145-149; Prosecution Submission, AnxA12; Prosecution Submission,AnxA64.121 Prosecution Application, para. 145. Prosecution Submission AnxA12 and 64.122 Prosecution Application, para. 36; Prosecution Submission, AnxA24; Prosecution Submission, AnxA26;Prosecution Submission, AnxA44, para. 19; Prosecution Submission, AnxA51, para. 43; ProsecutionSubmission, AnxA53, para. 63; Prosecution Submission, AnxA79, paras. 33 and 83.123 Ali Kushayb obtained a PDF appointment, introduced himself as being a member of the PDF, and was knownto wear a PDF uniform. Prosecution Application, paras. 37 and 79; Prosecution Submission, AnxA24;Prosecution Submission, AnxA26; Prosecution Submission, AnxA27; Prosecution Submission, AnxA42, para.63; Prosecution Submission, AnxA52.
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96. There are reasonable grounds to believe that, by virtue of the fact that he was
a senior tribal leader and a member of the PDF, AH Kushayb commanded thousands
of Militia/Janjaweed.124
97. Hence, there are reasonable grounds to believe that Ali Kushayb, as PDF
member and a senior Militia/Janjaweed leader representing the core
Militia/Janjaweed leadership, implemented the counter-insurgency strategy that
resulted in the commission of war crimes and crimes against humanity such as the
persecution, rape and killing of civilians and attacks of towns and villages in Darfur,
Sudan.125
98. Moreover, there are reasonable grounds to believe that from August 2003 until
in or about March 2004, Ali Kushayb participated with the Militia/Janjaweed under
his command in the attacks against civilians in Darfur and the attacks upon villages
and towns in the Wadi Salih area.126
99. There are reasonable grounds to believe that, together with the Sudanese
Armed Forces and Militia/Janjaweed, Ali Kushayb assigned the Militia/Janjaweed
and members of the Sudanese Armed Forces to different parts of Kodoom127 where
civilians were killed and thousands were forced to flee.128
100. Furthermore, there are reasonable grounds to believe that, on or about 15
August 2003, under the direction and supervision of Ali Kushayb,129 the
Militia/Janjaweed attacked the town of Bindisi, shooting and killing civilians,
124 Prosecution Application, para. 36; Prosecution Submission, AnxA24; Prosecution Submission, AnxA26;Prosecution Submission, AnxA44, para. 19; Prosecution Submission, AnxA51, para. 43; ProsecutionSubmission, AnxA53, para. 63; Prosecution Submission, AnxA79, paras. 33 and 83.125 Prosecution Application, paras. 161-164; Prosecution Submission, AnxA24; Prosecution Submission,AnxA26; Prosecution Submission, AnxA33, para. 40; Prosecution Submission, AnxA35, paras. 67-72;Prosecution Submission, AnxA42, para. 63; Prosecution Submission, AnxA53, para. 36; ProsecutionSubmission, AnxA79, paras. 33-37 and 53.126 Prosecution Application, para. 161; Prosecution Submission, AnxA79, paras. 33 and 37.127 Prosecution Application, para. 192; Prosecution Submission, AnxA32, para. 17; Prosecution Submission,AnxA39, paras. 57 and 61.128 Prosecution Application, paras. 189 and 196-198; Prosecution Submission, AnxA35, para. 43; ProsecutionSubmission, AnxA32, paras. 20-21 ; Prosecution Submission, AnxA37; Prosecution Submission, AnxA39, paras.60-66, 84-85, 88, and 95-97.129 Prosecution Application, paras. 201-208; Prosecution Submission, AnxA35, paras. 94-96.
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pillaging and destroying property, and burning huts and forcing civilians to flee.130
There are reasonable grounds to believe that the militia/Janjaweed repeatedly raped
women and girls from the town of Bindisi and perpetrated other inhumane acts.131
101. Moreover, there are reasonable grounds to believe that on or about 17 August
2003, Ali Kushayb was present during the attack on the town of Mukjar where,
together with the Sudanese Armed Forces, the Militia/Janjaweed detained, tortured
and killed civilians and raped women after the town had been attacked and
pillaged.132
102. There are reasonable grounds to believe that, in or around December 2003, Ali
Kushayb, together with the Sudanese Armed Forces and Militia/Janjaweed, attacked
Arawala town, perpetrating inhumane acts and inflicting cruel treatment, killing
civilians, setting alight huts and pillaging the town. There are reasonable grounds to
believe that, in the presence of Ali Kushayb, the Militia/Janjaweed raped and
stripped women naked.133
103. Having considered all the foregoing information, the Chamber finds that there
are reasonable grounds to believe that Ali Kushayb, being at the head of the
Militia/Janjaweed during the above-mentioned attacks during which the alleged
crimes were committed, was not only fully aware of the occurrence of such illegal
acts, but also committed them jointly with others.
104. Accordingly, in light of the available information, the Chamber finds that
there are reasonable grounds to believe that Ali Kushayb is criminally responsible
130 Prosecution Submission, AnxA35, paras. 41-61 and 80; Prosecution Submission, AnxA64, p. 5; ProsecutionSubmission, AnxA42, paras. 25-51; Prosecution Submission, AnxA46, paras. .51-52; Prosecution Submission,AnxA40, para. 40; Prosecution Submission, AnxA39, para, 36; Prosecution Submission, AnxA31, p. 7;Prosecution submission, AnxA61; Prosecution Submission, AnxA52, p. 7; Prosecution Submission, AnxA37, p.8; Prosecution Submission, AnxA5, p. 2; Prosecution Submission, AnxA25, p. 1; Prosecution Submission,AnxA16, p. 1; Prosecution Submission, AnxA12, p. 1; Prosecution Submission, AnxASOl, para. 112;Prosecution Submission, AnxA45, para. 108; Prosecution Submission, AnxA43, para. 110; ProsecutionSubmission, AnxA79, para. 58.131 Prosecution Application paras. 211-213; Prosecution Submission, AnxA35, paras. 62-81.132 Prosecution Application, paras. 162, 218-231 and 233-235; Prosecution Submission, AnxA35, paras. 67-72.133 Prosecution Application, paras. 242 and 244-247; Prosecution Submission, AnxA35, paras. 67-72.
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under article 25(3)(a) of the Statute for committing jointly with others the crimes
against humanity and war crimes as referred to in counts 7, 16, 25, 27, 29, 31, 33, 45
and 47 of the Prosecution Application.
105. Furthermore, the Chamber is of the view that there are reasonable grounds to
believe that, in the period from mid 2003 to early 2004, Ali Kushayb, perceived as
"the mediator" between the leaders of the Militia/Janjaweed in Wadi Salih and the
Government of the Sudan,134 also mobilised, recruited, armed, and provided supplies
to the Militia/Janjaweed under his command.135 Also, there are reasonable grounds to
believe that he ensured the enlistment of those tribesmen mobilised by him as PDF
fighters.136 There are reasonable grounds to believe that Ali Kushayb provided funds,
equipment, food, and other supplies from the Government of the Sudan to members
of the Militia/Janjaweed under his command.137
106. Having considered all the foregoing information, the Chamber finds that there
are reasonable grounds to believe that, by reason of his position as a PDF member
and as a senior Militia/Janjaweed leader who enlisted fighters, mobilised, recruited,
armed, funded the Militia/Janjaweed under his command and provided food,
equipment and other supplies to them, Ali Kushayb intentionally contributed to the
commission of the above-mentioned crimes, knowing that his contribution would
further the common plan carried out by the Sudanese Armed Forces and the
Militia/Janjaweed, which consisted in attacking the civilian populations in Darfur.
107. The Chamber therefore finds that there are reasonable grounds to believe that
Ali Kushayb is criminally responsible under article 25(3)(d) of the Statute for the war
crimes and crimes against humanity as referred to in counts 1-6, 8-15, 17-24, 26, 28,
134 Prosecution Application, para. 163; Prosecution Submission, AnxA24; Prosecution Submission, AnxA26;Prosecution Submission, AnxA33, para. 40; Prosecution Submission, AnxA79, para. 45.135 Prosecution Application, para. 163; Prosecution Submission, AnxA24; Prosecution Submission, AnxA26;Prosecution Submission, AnxA33, para. 40; Prosecution Submission, AnxA79, para. 45.136 Prosecution Application, para. 163; Prosecution Submission, AnxA24; Prosecution Submission, AnxA26;Prosecution Submission, AnxA33, para. 40; Prosecution Submission, AnxA79, para. 45.137 Prosecution Application, para. 164; Prosecution Submission, AnxA26; Prosecution Submission; AnxA42,para. 63; Prosecution Submission, AnxA79, paras. 33-34 and 53.
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30, 32, 34-36, 38-44, 46, 48-51 of the Prosecution Application, having personally
contributed to the common plan which had the illegal objective of attacking civilian
populations in Darfur.
IV. Whether the specific requirements under article 58 of the Statute for theissuance of a summons to appear or, in the alternative, for the issuance of awarrant of arrest, have been met
A. The requirements under article 58(7) of the Statute
108. Upon the application of the Prosecution, the Chamber shall, if satisfied that
there are reasonable grounds to believe that a person has committed crimes within
the jurisdiction of the Court as provided for in article 58 of the Statute, issue either a
warrant for his or her arrest or a summons for his or her appearance.
109. The Chamber will now turn its attention to the existence of the specific
requirements under article 58 of the Statute for the issuance of summonses to appear
or warrants of arrest against the two persons concerned by the Prosecution
Application.
110. The Prosecution submits that at this stage a summons to appear should be the
Court's first alternative and that the issuance of two summonses to appear for Ali
Kushayb and Ahmad Harun would be sufficient to ensure their appearance before
the Court.138
111. In this regard, the Prosecution alleges that "the Government of the Sudan,
which would serve the summons, and would have to facilitate and follow up on the
summons, thus far has in practice provided a degree of cooperation in response to
the Prosecution's requests".139 The Prosecution added that the Government of the
Sudan provided information required by the Prosecution in respect of particular
documents from the National Commission of Inquiry, facilitated four missions to
138 Prosecution Application, para. 273.139 Prosecution Application, para. 274.
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Khartoum during 2005 and 2006, facilitated interviews including that of a senior
official under the procedures set out in article 55(2) of the Statute and organised a
fifth mission to Khartoum in January 2007.
112. The Prosecution further submits that Ahmad Harun has, moreover,
previously shown willingness to cooperate with the International Commission of
Inquiry and the National Commission of Inquiry.140 It also alleges that Ali Kushayb,
reportedly detained in Sudan pursuant to a warrant of arrest issued by the Sudanese
authorities, could appear before the Court under a summons to appear while
remaining in custody in the context of the Sudanese legal proceedings.141
113. Nevertheless, in its "Provision of Information Pursuant to Undertakings Made
During Hearing on 8 March 2007", the Prosecution notes that Sudan does not have
domestic legislation implementing either the Statute or addressing the issue of
cooperation with the Court. It also submits that it "has not yet discussed with the
Sudanese authorities the modalities of Ali Kushayb's response to a potential
summons to appear under article 58(7) of the Statute while he is in detention and
being tried in Sudan for other matters".142
114. Finally, the Prosecution states that the Pre-Trial Chamber will weigh the
record independently on this issue and submits that a number of circumstances
could lead it to modify its assessment of the likelihood that a summons to appear
would prove sufficient in ensuring the appearance of Ahmad Harun and Ali
Kushayb before the Court. The Prosecution further states that any official response of
the Government of the Sudan or of Ahmad Harun or Ali Kushayb showing that they
would resist or fail to comply with the decision of the Pre-Trial Chamber, would
modify this assessment and would justify the issuance of warrants of arrest.143
140 Prosecution Application, para. 275.141 Prosecution Application, para. 276.142 ICC-02/05-62-US-Exp, para. 2.143 Prosecution Application, paras. 277 and 278.
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115. Article 58(7) of the Statute stipulates that the Chamber shall issue a summons
to appear as an alternative to a warrant of arrest under specific circumstances, that is,
if it is satisfied that a summons is sufficient to ensure the person's appearance.
116. The Chamber shall therefore consider whether, based on the Prosecution
Application and its supporting material, the issuance of a summons to appear is
sufficient to ensure the person's appearance. For this purpose, the Chamber shall be
satisfied that a summons to appear would be equally effective as a warrant of arrest
to ensure the person's appearance before the Court.
117. In the Chamber's view, the issue raised by article 58 of the Statute is whether
or not the arrests of these persons appear to be necessary. The application of article
58(7) of the Statute is restricted to cases in which the person can and will appear
voluntarily before the Court without the necessity of presenting a request for arrest
and surrender as provided for in articles 89 and 91 of the Statute.
118. The Chamber can only issue a summons to appear if the Prosecution
Application and its supporting material provide sufficient guarantees that the person
will appear before the Court.
119. Regarding Ali Kushayb, the Chamber notes that he is reported to be in prison
upon a warrant of arrest issued by the Sudanese authorities and that the Prosecution
has not presented any information that would lead to the conclusion that Ali
Kushayb would appear voluntarily before the Court while being detained by the
Sudanese authorities.
120. Moreover, the Chamber is of the view that issuing a summons to appear for a
person currently detained by national authorities would be contrary to the object and
purpose of article 58(7) of the Statute. Indeed, the possibility provided for in article
58(7) of the Statute to issue a summons to appear with conditions restricting liberty
(other than detention), and the list of those conditions provided for in rule 119 of the
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Rules, clearly indicate that a summons to appear is intended to apply only to persons
who are not already being detained.
121. In addition, although the Prosecution alleges in its application144 that Ali
Kushayb could appear before the Court under a summons to appear while remaining
in custody in the context of the Sudanese legal proceedings, it does not indicate how
this would be possible under the legal framework provided for by the Statute and the
Rules. Under this framework,145 it is not possible to envisage a surrender, even a
temporary surrender as provided for in rule 183 of the Rules and which seems to be
referred to implicitly in the Prosecution Application, without the prior issuance of a
warrant of arrest.
122. Regarding the situation of Ahmad Harun, the Prosecution submits that he has
in the past shown willingness to cooperate with the International Commission of
Inquiry and National Commission of Inquiry. Nevertheless, according to the
Prosecution Application, Ahmad Harun has a previous record of concealing
evidence in this case.146
123. Furthermore, according to the "Update on the Prosecutor's contact with the
Government and Other International Actors", the Sudanese Ministry of Foreign
Affairs recently stated in a public document that Sudan will not cooperate with the
Court and "maintain[s] that [it] has no right to extend its powers over Sudanese
territory or its jurisdiction over Sudanese citizens".147
124. Therefore, considering the information provided by the Prosecution, the
Chamber is not satisfied that the requirement under article 58(7) of the Statute, i.e.
that Ahmad Harun and Ali Kushayb will appear voluntarily before the Court, is met.
144 Prosecution Application, para. 276.145 See articles 58(5), 89 and 91 of the Statute.146 Prosecution Application, para. 272, footnote 161; ICC-02-05-T-l-CONF-EXP-EN[8March2007Edited], p.25-26.147 ICC-02/OS-72-US-Exp-Anx A, p. 5.
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125. Having concluded that it is not satisfied that the requirements of article 58(7)
of the Statute are met, the Chamber will now consider whether the arrests of Ahmad
Harun and AH Kushayb appear necessary under article 58(l)(b) of the Statute.
B. The requirements under article 58(l)(b) of the Statute
126. Under article 58(l)(b) of the Statute, the Chamber may issue a warrant of
arrest only if it is satisfied that the arrest of the person appears necessary:
(i) to ensure the person's appearance at trial;
(ii) to ensure that the person does not obstruct or endanger the
investigation or the court proceedings; or
(iii) where applicable, to prevent the person from continuing with
the commission of that crime or a related crime which is within
the jurisdiction of the Court and which arises out of the same
circumstances.
127. According to the supporting material provided by the Prosecution,148 Ahmad
Harun is part of the "inner circle of power" within the Government of the Sudan.
Accordingly, this "inner circle of power" holds the actual reins of power and control
over Government assets.
128. The Chamber is satisfied that there are reasonable grounds to believe that, in
addition to being a member of the "inner circle of power", Ahmad Harun, who was
the Head of the Darfur Security desk from April 2003 to April 2004 and is currently
Minister of Humanitarian Affairs, still wields enough power to influence decision-
making regarding the Darfur conflict. Secondly, the Chamber notes that, because of
his current position, Ahmad Harun might benefit from a certain guarantee that he
will not face justice. Thirdly, in the Chamber's view, the highest authorities of Sudan
148 Prosecution Submission, AnxA17, p.1-2.
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may have a protective attitude towards members of government/military structures,
such as Ahmad Harun.
129. Furthermore, in its supporting material, the Prosecution presented a report149
showing that Ahmad Harun has been concealing evidence contained in the minutes
of the various Security Committee meetings relating to the implementation of the
Government's counter-insurgency policy while he was Minister of State for the
Interior. It appears that in response to a request for access to these minutes by the
National Commission of Inquiry, Ahmad Harun issued a decree ordering that the
minutes be collected and sent to Khartoum. Furthermore, it is reported that Ahmad
Harun directed that the minutes not be transmitted to the International Commission
of Inquiry.150
130. Finally, the Chamber notes that the International Commission of Inquiry
stressed in its report that "there have been episodes indicative of pressure put by
some regional or local authorities on prosepective witnesses or on witnesses alreadyt
interviewed by the Commission [...] [and] that the Sudanese authorities had
deployed infiltrators posing as internally displaced persons into some camps such as
Abushouk".151
131. In the view of the Chamber, it appears that Ahmad Harun may have
concealed evidence in a bid to protect the government counter-insurgency policy.
Accordingly, the Chamber considers that his arrest appears necessary, under article
58(l)(b)(ii) of the Statute, to ensure that he will not obstruct or endanger the
investigation.
132. Furthermore, according to the Prosecution's supporting material, Ali
Kushayb, is currently "in the custody of the Sudanese police". The Chamber has no
149 Prosecution Submission, AnxA9.150 Ibid, p. 6.151 Prosecution Submission, AnxAlS, para. 35.
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information as to the absence of contact between Ali Kushayb and external actors
outside the custody of the Sudanese police.
133. In the view of the Chamber, the detention of Ali Kushayb prevents him from
willingly and voluntarily appearing before the Court. Therefore, his arrest appears
necessary at this stage to ensure his appearance at trial.
134. Accordingly, on the basis of the Prosecution Application and its supporting
material, the Chamber considers that the arrests of Ali Kushayb and Ahmad Harun
appear to be necessary at this stage pursuant to article 58(l)(b) of the Statute.
V. Transmission of the Warrants of Arrest
135. The Pre-Trial Chamber is the only competent organ of the Court which may:
(1) issue and amend a warrant of arrest; (2) coordinate with the national authorities
of the requested State concerning any incident which might affect the surrender of
the person to the Court once the person has been arrested; and (3) thoroughly follow
up on the execution of cooperation requests for both arrest and surrender of the
relevant person. Hence, the Pre-Trial Chamber, assisted by the Registry, in
accordance with rules 176(2) and 184 of the Rules, must be regarded as the only
organ of the Court competent to make and transmit a cooperation request for arrest
and surrender.152
136. The Chamber considers that it is necessary for the protection and privacy of
witnesses and victims within the meaning of article 57(3) (c) of the Statute that the
Prosecution, insofar as it is not prevented from doing so by its confidentiality
obligations, transmit to the Chamber and the Registry as soon as practicable any
information related to the potential risks that the transmission of the cooperation
requests for the arrest and surrender of Ahmad Harun and Ali Kushayb may cause
to victims and witnesses.
152 ICC-02/04-01/05-l-US-Exp, p. 6. See supra footnote 12.
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137. Furthermore, the Chamber considers that it would be beneficial for the
expeditious execution of the cooperation requests for arrest and surrender of Ahmad
Harun and Ali Kushayb that the Prosecution, insofar as it is not prevented from
doing so by its confidentiality obligations, transmit as soon as practicable to the
Chamber and the Registry any information that, in the view of the Prosecution,
would facilitate the expeditious execution by national authorities of such cooperation
requests for arrest and surrender.
FOR THESE REASONS
DECIDES to issue warrants of arrest for Ahmad Harun and Ali Kushayb for their
alleged responsibility for crimes against humanity and/or war crimes under article 25
of the Statute for:
Count 1
(Persecution in the Kodoom villages and surrounding areas constituting a crimeagainst humanity)
From on or about 15 August 2003 to on or about 31 August 2003, Ahmad Harun andAli Kushayb, as part of a group of persons acting with a common purpose,contributed to the persecution of the primarily Fur population of the Kodoomvillages and surrounding areas by acts of murder, attack of the civilian population,destruction of property and forcible transfer (articles 7(l)(h) and 25(3)(d) of theStatute);
Count 2
(Murder of civilians in the Kodoom villages and surrounding areas constituting acrime against humanity)
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On or about 15 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of civilians fromthe primarily Fur population of the Kodoom villages and surrounding areas (articles7(l)(a) and 25(3)(d) of the Statute);
Count 3
(Murder of civilians in the Kodoom villages and surrounding areas constituting awar crime)
On or about 15 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of civilians fromthe primarily Fur population of the Kodoom villages and surrounding areas, whilethose civilians were taking no active part in hostilities (articles 8(2)(c)(i) and 25(3)(d)of the Statute);
Count 4
(Murder of civilians in the Kodoom villages and surrounding areas constituting acrime against humanity)
On or about 31 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of civilians fromthe primarily Fur population of the Kodoom villages and surrounding areas (articles7(l)(a) and 25(3)(d) of the Statute);
Count 5
(Murder of civilians in the Kodoom villages and surrounding areas constituting awar crime)
On or about 31 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of civilians fromthe primarily Fur population of the Kodoom villages and surrounding areas, whilethose civilians were taking no active part in hostilities (articles 8(2)(c)(i) and 25(3)(d)of the Statute);
Count 6
(Attacks against the civilian population in the Kodoom villages and surroundingareas constituting a war crime)
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From on or about 15 August 2003 to on or about 31 August 2003, Ahmad Harun andAll Kushayb, as part of a group of persons acting with a common purpose,contributed to the commission of attacks against civilians from the primarily Furpopulation of the Kodoom villages and surrounding areas, and against civilians nottaking direct part in hostilities (articles 8(2)(e)(i) and 25(3)(d) of the Statute);
Count 7
(Attacks against the civilian population in the Kodoom villages and surroundingareas constituting a war crime)
From on or about 15 August 2003 to on or about 31 August 2003, Ali Kushaybcommitted, jointly with others, attacks against civilians from the primarily Furpopulation of the Kodoom villages and surrounding areas, and against civilians nottaking direct part in hostilities (articles 8(2)(e)(i) and 25(3)(a) of the Statute);
Count 8
(Destruction of property in the Kodoom villages and surrounding areas constitutinga war crime)
From on or about 15 August 2003 to on or about 31 August 2003, Ahmad Harun andAli Kushayb, as part of a group of persons acting with a common purpose,contributed to the destruction of property belonging to the primarily Fur populationof the Kodoom villages and surrounding areas, including the burning of houses(articles 8(2)(e)(xii) and 25(3)(d) of the Statute);
Count 9
(Forcible transfer from the Kodoom villages and surrounding areas constituting acrime against humanity)
From on or about 15 August 2003 to on or about 31 August 2003 Ahmad Harun andAli Kushayb, as part of a group of persons acting with a common purpose,contributed to the forcible transfer of approximately 20,000 primarily Fur civiliansfrom the Kodoom villages and surrounding areas, resulting in the desertion of thevillages (articles 7(l)(d) and 25(3)(d) of the Statute);
Count 10
(Persecution in Bindisi town and surrounding areas constituting a crime againsthumanity)
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On or about 15 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the persecution of theprimarily Fur population of Bindisi town and surrounding areas, by acts of murder,rape, attack of the civilian population, inhumane acts, pillaging, destruction ofproperty and forcible transfer of the population (articles 7(l)(h) and 25(3)(d) of theStatute);
Count 11
(Murder of civilians in Bindisi town and surrounding areas constituting a crimeagainst humanity)
On or about 15 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of over 100civilians from the primarily Fur population of Bindisi town and surrounding areas(articles 7(l)(a) and 25(3)(d) of the Statute);
Count 12
(Murder of civilians in Bindisi town and surrounding areas constituting a war crime)
On or about 15 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of over 100civilians from the primarily Fur population of Bindisi town and surrounding areas,while those civilians were taking no active part in hostilities (articles 8(2)(c)(i) and25(3)(d) of the Statute);
Count 13
(Rape in Bindisi town and surrounding areas constituting a crime against humanity)
On or about 15 August 2003. Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the rape of women and girlsfrom the primarily Fur population of Bindisi town and surrounding areas (articles7(l)(g) and 25(3)(d) of the Statute);
Count 14
(Rape in Bindisi town and surrounding areas constituting a war crime)
On or about 15 August 2003. Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the rape of women and girls
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from the primarily Fur population of Bindisi town and surrounding areas (articles8(2)(e)(vi) and 25(3)(d) of the Statute);
Count 15
(Attacks against the civilian population in Bindisi town and surrounding areasconstituting a war crime)
On or about 15 August 2003, Ahmad Harun and All Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the commission of attacksagainst civilians from the primarily Fur population of Bindisi town and surroundingareas, while those civilians were not taking direct part in hostilities (articles 8(2)(e)(i)and 25(3)(d) of the Statute);
Count 16
(Attacks against the civilian population in Bindisi town and surrounding areasconstituting a war crime)
On or about 15 August 2003, Ali Kushayb committed, jointly with others, attacksagainst civilians from the primarily Fur population of Bindisi town and surroundingareas, while those civilians were not taking direct part in hostilities (articles 8(2)(e)(i)and 25(3)(a) of the Statute);
Count 17
(Inhumane acts in Bindisi town constituting a crime against humanity)
On or about 15 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the infliction of greatsuffering, serious injury to body or to mental or physical health by means ofinhumane acts upon civilians from the primarily Fur population of Bindisi town andsurrounding areas including the inhumane act of shooting, resulting in serious injury(articles 7(l)(k) and 25(3)(d) of the Statute);
Count 18
(Pillaging in Bindisi town and surrounding areas constituting a war crime)
On or about 15 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the pillaging of propertybelonging to the primarily Fur population of Bindisi town and surrounding areas,
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including the pillaging of household property (articles 8(2)(e)(v) and 25(3)(d) of theStatute);
Count 19
(Destruction of property in Bindisi town and surrounding areas constituting a warcrime)
On or about 15 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the destruction of propertybelonging to the primarily Fur population of Bindisi town and surrounding areas,including the burning of food storages, the mosque and dwellings in the area(articles 8(2)(e)(xii) and 25(3)(d) of the Statute);
Count 20
(Forcible transfer from Bindisi town and surrounding areas constituting a crimeagainst humanity)
On and about 15 August 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the forcible transfer ofapproximately 34,000 primarily Fur civilians from Bindisi town and surroundingareas, resulting in the desertion of the town (articles 7(l)(d) and 25(3)(d) of theStatute);
Count 21
(Persecution in Mukjar town and surrounding areas constituting a crime againsthumanity)
Between August 2003 and March 2004, Ahmad Harun and Ali Kushayb, as part of agroup of persons acting with a common purpose, contributed to the persecution ofthe primarily Fur population of Mukjar town and surrounding areas by acts ofmurder, attack of the civilian population, imprisonment or severe deprivation ofliberty, torture, pillaging and destruction of property (articles 7(l)(h) and 25(3)(d) ofthe Statute);
Count 22
(Murder of men in Mukjar town and surrounding areas constituting a crime againsthumanity)
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Between September 2003 and October 2003, Ahmad Harun and Ali Kushayb, as partof a group of persons acting with a common purpose, contributed to the murder of atleast 20 men from the primarily Fur population of Mukjar town and surroundingareas (articles 7(l)(a) and 25(3)(d) of the Statute);
Count 23
(Murder of men in Mukjar town and surrounding areas constituting a war crime)
Between September 2003 and October 2003, Ahmad Harun and Ali Kushayb, as partof a group of persons acting with a common purpose, contributed to the murder of atleast 20 men from the primarily Fur population of Mukjar town and surroundingareas, while those men were taking no active part in hostilities (articles 8(2)(c)(i) and25(3)(d) of the Statute);
Count 24
(Murder of men in Mukjar town and surrounding areas constituting a crime againsthumanity)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of at least 21 menfrom the primarily Fur population of Mukjar town and surrounding areas (articles7(l)(a) and 25(3)(d) of the Statute);
Count 25
(Murder of men in Mukjar town and surrounding areas constituting a crime againsthumanity)
In or around December 2003, Ali Kushayb committed, jointly with others, themurder of at least 21 men from the primarily Fur population of Mukjar town andsurrounding areas by transporting them under armed guard to their place ofexecution (articles 7(l)(a) and 25(3)(a) of the Statute);
Count 26
(Murder of men in Mukjar town and surrounding areas constituting a war crime)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of at least 21 menfrom the primarily Fur population of Mukjar town and surrounding areas, while
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those men were taking no active part in hostilities (articles 8(2)(c)(i) and 25(3)(d) ofthe Statute);
Count 27
(Murder of men in Mukjar town and surrounding areas constituting a war crime)
In or around December 2003, Ali Kushayb committed, jointly with others, themurder of at least 21 men from the primarily Fur population of Mukjar town andsurrounding areas, while those men were taking no active part in hostilities, bytransporting them under armed guard to their place of execution (articles 8(2)(c)(i)and 25(3)(a) of the Statute);
Count 28
(Murder of men in Mukjar town and surrounding areas constituting a crime againsthumanity)
In or around March 2004, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of at least 32 menfrom the primarily Fur population of Mukjar town and surrounding areas (articles7(l)(a) and 25(3)(d) of the Statute);
Count 29
(Murder of men in Mukjar town and surrounding areas constituting a crime againsthumanity)
In or around March 2004, Ali Kushayb committed, jointly with others, the murder ofat least 32 men from the primarily Fur population of Mukjar town and surroundingareas by transporting them under armed guard to their place of execution(articles 7(l)(a) and 25(3)(a) of the Statute);
Count 30
(Murder of men in Mukjar town and surrounding areas constituting a war crime)
In or around March 2004, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of at least 32 menfrom the primarily Fur population of Mukjar town and surrounding areas, whilethose men were taking no active part in hostilities (articles 8(2)(c)(i) and 25(3)(d) ofthe Statute);
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Count 31
(Murder of men in Mukjar town and surrounding areas constituting a war crime)
In or around March 2004, Ali Kushayb committed, jointly with others, the murder ofat least 32 men from the primarily Fur population of Mukjar town and surroundingareas, while those men were taking no active part in hostilities, by transporting themunder armed guard to their place of execution (articles 8(2)(c)(i) and 25(3)(a) of theStatute);
Count 32
(Attacks against the civilian population in Mukjar town and surrounding areasconstituting a war crime)
Between August 2003 and March 2004, Ahmad Harun and Ali Kushayb, as part of agroup of persons acting with a common purpose, contributed to the commission ofattacks against civilians from the primarily Fur population of Mukjar town andsurrounding areas and against civilians not taking direct part in hostilities (articles8(2)(e)(i) and 25(3)(d) of the Statute);
Count 33
(Attacks against the civilian population in Mukjar town and surrounding areasconstituting a war crime)
Between August 2003 and March 2004, Ali Kushayb committed, jointly with others,attacks against civilians from the primarily Fur population of Mukjar town andsurrounding areas and against civilians not taking direct part in hostilities (Articles8(2)(e)(i) and 25(3)(a) of the Statute);
Count 34
(Imprisonment or severe deprivation of liberty in Mukjar town and surroundingareas constituting a crime against humanity)
Beginning in or about August 2003, Ahmad Harun and Ali Kushayb, as part of agroup of persons acting with a common purpose, contributed to the imprisonment orsevere deprivation of the physical liberty of at least 400 civilians from the primarilyFur population of Mukjar town and surrounding areas (articles 7(l)(e) and 25(3)(d) ofthe Statute);
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Count 35
(Torture in Mukjar town and surrounding areas constituting a crime againsthumanity)
Beginning in or about August 2003, Ahmad Harun and Ali Kushayb, as part of agroup of persons acting with a common purpose, contributed to the torture of at least60 civilians from the primarily Fur population of Mukjar town and surroundingareas (article 7(l)(f) and 25(3)(d) of the Statute);
Count 36
(Pillaging in Mukjar town and surrounding areas constituting a war crime)
Between August 2003 and March 2004, Ahmad Harun and Ali Kushayb, as part of agroup of persons acting with a common purpose, contributed to the pillaging ofproperty belonging to the primarily Fur population of Mukjar town and surroundingareas including the pillaging of shops, houses and livestock (articles 8(2)(e)(v) and25(3)(d) of the Statute);
Count 37
(Pillaging in Mukjar town and surrounding areas constituting a war crime)
Between on or about 3 August 2003 and 10 August 2003, Ahmad Harun induced thecommission of the pillaging of property belonging to the primarily Fur population ofMukjar town and surrounding areas including the pillaging of shops, houses andlivestock (articles 8(2)(c)(v) and 25(3) (b) of the Statute);
Count 38
(Destruction of property in Mukjar town and surrounding areas constituting a warcrime)
Between August 2003 and March 2004, Ahmad Harun and Ali Kushayb, as part of agroup of persons acting with a common purpose, contributed to the destruction ofproperty belonging to the primarily Fur population of Mukjar town and surroundingareas, including the burning of dwellings and the destruction of crops and farms(articles 8(2)(e)(xii) and 25(3)(d) of the Statute);
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Count 39
(Persecution in Arawala town and surrounding areas constituting a crime againsthumanity)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the persecution of theprimarily Fur population of Arawala town and surrounding areas, by acts of murder,rape, attack of the civilian population, outrages upon personal dignity, inhumaneacts, pillaging, destruction of property and forcible transfer of the population(articles 7(l)(h) and 25(3)(d) of the Statute);
Count 40
(Murder of civilians in Arawala town and surrounding areas constituting a crimeagainst humanity)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of at least 26civilians from the primarily Fur population of Arawala town and surrounding areas(articles 7(l)(a) and 25(3)(d) of the Statute);
Count 41
(Murder of civilians in Arawala town and surrounding areas constituting a warcrime)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the murder of at least 26civilians from the primarily Fur population of Arawala town and surrounding areas,while those civilians were taking no active part in hostilities (articles 8(2)(c)(i) and25(3)(d) of the Statute);
Count 42
(Rape in Arawala town and surrounding areas constituting a crime againsthumanity)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the rape of at least 10 womenand girls from the primarily Fur population of Arawala town and surrounding areas(articles 7(l)(g) and 25(3)(d) of the Statute);
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Count 43
(Rape in Arawala town and surrounding areas constituting a war crime)
In or around December 2003, Ahmad Harun and All Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the rape of at least 10 womenand girls from the primarily Fur population of Arawala town and surrounding areas(articles 8(2)(e) (vi) and 25(3)(d) of the Statute);
Count 44
(Attacks against the civilian population in Arawala town and surrounding areasconstituting a war crime)
In or around December 2003, Ahmad Harun and All Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the commission of attacksagainst civilians from the primarily Fur population of Arawala town andsurrounding areas and against civilians not taking direct part in hostilities (articles8(2)(e)(i) and 25(3)(d) of the Statute);
Count 45
(Attacks against the civilian population in Arawala town and surrounding areasconstituting a war crime)
In or around December 2003, Ali Kushayb committed, jointly with others, attacksagainst civilians from the primarily Fur population of Arawala town andsurrounding areas and against civilians not taking direct part in hostilities (articles8(2)(e)(i) and 25(3)(a) of the Statute);
Count 46
(Outrage upon personal dignity in Arawala town and surrounding areas constitutinga war crime)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to outrage upon personaldignity of at least 10 women and girls from the primarily Fur population of Arawalatown and surrounding areas (articles 8(2)(c) (ii) and 25(3)(d) of the Statute);
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Count 47
(Outrage upon personal dignity in Arawala town and surrounding areas constitutinga war crime)
In or around December 2003, Ali Kushayb committed, jointly with others, outrageupon personal dignity of at least 10 women and girls from the primarily Furpopulation of Arawala town and surroundings areas (articles 8(2)(c) (ii) and 25(3)(a)of the Statute);
Count 48
(Inhumane acts in Arawala constituting a crime against humanity)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the infliction great suffering,or serious injury to body or to mental or physical health by means of an inhumaneact upon civilians from the primarily Fur population of Arawala town andsurrounding areas (articles 7(l)(k) and 25(3)(d) of the Statute);
Count 49
(Pillaging in Arawala town and surrounding areas constituting a war crime)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the pillaging of propertybelonging to the primarily Fur population of Arawala town and surrounding areas,including the pillaging of stores, houses and livestock (articles 8(2)(e)(v) and 25(3)(d)of the Statute);
Count 50
(Destruction of property in Arawala town and surrounding areas constituting a warcrime)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the destruction of propertybelonging to the primarily Fur population of Arawala town and surrounding areas,including the destruction of most of Arawala town (articles 8(2)(e)(xii) and 25(3)(d) ofthe Statute);
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Count 51
(Forcible transfer from Arawala town and surrounding areas constituting a crimeagainst humanity)
In or around December 2003, Ahmad Harun and Ali Kushayb, as part of a group ofpersons acting with a common purpose, contributed to the forcible transfer ofapproximately 7,000 primarily Fur civilians from Arawala town and surroundingareas to the towns of Deleig, Garsila and other locations, resulting in the desertion ofthe town (articles 7(l)(d) and 25(3)(d) of the Statute).
DECIDES that the warrants of arrest for Ahmad Harun and Ali Kushayb shall be
included in a separate self-executing document containing the information required
by article 58(3) of the Statute;
RECALLS the United Nations Security Council resolution 1593, acting pursuant to
Chapter VII of the Charter of the United Nations, in which the Security Council
decided that the Government of the Sudan and all other parties to the Darfur conflict,
shall cooperate fully with and provide any necessary assistance to the Court and the
Prosecutor pursuant to the resolution and, while recognizing that States not party to
the Statute have no obligation under the Statute, urged all States and concerned
regional and other international organizations to cooperate fully;
DECIDES that, as soon as practicable, the Registry: (i) shall prepare two requests for
cooperation seeking the arrest and surrender of Ahmad Harun and Ali Kushayb and
containing the information and documents required by article 91 of the Statute; and
(ii) shall transmit such requests to the competent Sudanese authorities in accordance
with rule 176(2) of the Rules and to the following States:
(i) All States Parties to the Statute;
(ii) All United Nations Security Council members that are not
States Parties to the Statute; and
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(iii) Egypt, Eritrea, Ethiopia and Libya.
ORDERS the Registry to comply with its obligations under rule 187 of the Rules;
FURTHER DIRECTS the Registrar, as appropriate, to prepare and to transmit to any
other State any additional request for arrest and surrender which may be necessary
for the arrest and surrender of Ahmad Harun and Ali Kushayb to the Court pursuant
to articles 89 and 91 of the Statute;
DIRECTS the Registrar to prepare and transmit to any State any request for
provisional arrest which may be necessary for the surrender of the persons
concerned to the Court pursuant to article 92 of the Statute;
DIRECTS the Registrar, pursuant to article 89(3) of the Statute, to prepare and
transmit to any State any request for transit which may be necessary for the
surrender of the persons concerned to the Court;
RECALLS the possibility for Sudan to temporarily surrender Ali Kushayb as
provided for in article 89(4) of the Statute and rule 183 of the Rules;
ORDERS the Prosecution to transmit to the Chamber and to the Registry, as far as its
confidentiality obligations allow, all information available to the Prosecution that
may assist in averting any risks to victims or witnesses associated with the
transmission of any of the above-mentioned cooperation requests;
INVITES the Prosecution to transmit to the Chamber and to the Registry, as far as its
confidentiality obligations allow, all information available to it that, in its view,
would facilitate the transmission and execution of any of the above-mentioned
cooperation requests;
DECIDES to lift the seal on the existence and content of the following documents
only to the extent to which they are referred to in the present decision:
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(i) ICC-02/05-62-US-Exp;
(ii) ICC-02/05-64-US-Exp;
(iii) ICC-02/05-67-US;
(iv) ICC-02/05-69-US-Exp; and
(v) ICC-02/05-72-US-Exp.
Done in both English and French, the English version being authoritative.
Judge Akua Kuenyehia
Presiding Judge
Judge Claude Jorda Judge Sylvia Steiner
Dated this Friday 27 April 2007
At The Hague, The Netherlands
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